Responding to International Crime (International Studies in Human Rights)

Responding to International Crime International Studies in Human Rights VOLUME 88 Responding to International Crime...

Author: Geoff Gilbert

190 downloads 1858 Views 2MB Size Report

This content was uploaded by our users and we assume good faith they have the permission to share this book. If you own the copyright to this book and it is wrongfully on our website, we offer a simple DMCA procedure to remove your content from our site. Start by pressing the button below!

Report copyright / DMCA form

DOWNLOAD PDF

Responding to International Crime

International Studies in Human Rights VOLUME 88

Responding to International Crime

Geoff Gilbert

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper. ISSN 0924-4751 ISBN 10 90 04 15276 8 ISBN 13 978 90 04 15276 2 © 2006 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Printed in the Netherlands

To Clare, Sarah and Mary-Ann, my wife and children, who lived and breathed this book as much as I did.

Contents Preface ........................................................................................................ Updates ...................................................................................................... Acknowledgements .................................................................................... Case List ....................................................................................................

xiii xv xvi xvii

Chapter One International Criminals and the Legal Process ..........................................

1

Introduction ................................................................................................ Extradition .............................................................................................. International Criminal Law .................................................................... Extra-territorial jurisdiction international crimes and transnational fugitive offenders ................................................................................ Other forms of rendition ........................................................................ Human rights and rendition .................................................................... The Problem .............................................................................................. Policy .......................................................................................................... Problems of Circumscription and Deﬁnition .............................................. History of Extradition ................................................................................ Developments in the Law ...................................................................... Plan and Structure ......................................................................................

1 3 5 7 8 8 9 12 14 17 21 23

Chapter Two Mechanisms for International Extradition ................................................

24

Introduction ................................................................................................ Forms of Arrangement ................................................................................ Multilateral Arrangements ...................................................................... Simpliﬁed Schemes ................................................................................ Extradition without a General Arrangement .......................................... Summary ................................................................................................ Transfer to International Criminal Tribunals .............................................. The Effects of War and State Succession ....................................................

24 29 31 41 42 44 44 50

viii

Contents

Chapter Three Effecting the Response through International Criminal Procedures ..........

54

Introduction ................................................................................................ Mutual Assistance in Criminal Matters ...................................................... Comparative Overview .............................................................................. Pre-hearing Detention ................................................................................ The Roles of the Judiciary and the Executive ............................................ Extradition Crimes, Jurisdiction and Double Criminality .......................... Extradition Crimes ................................................................................ Jurisdiction ............................................................................................ Qualiﬁed Territorial Jurisdiction ........................................................ The Active Personality Principle ........................................................ The Protective Principle .................................................................... The Passive Personality Principle ...................................................... The Representational Principle .......................................................... Universal Jurisdiction ........................................................................ Double Criminality ................................................................................ Double Criminality and Jurisdiction ...................................................... Fiscal Offences .......................................................................................... The Requirement of a Prima Facie Case .................................................... Evidence and Extradition Hearings ............................................................ Form ...................................................................................................... Admissibility .......................................................................................... Trial in the Requested State .................................................................... Conclusion .............................................................................................. Res Judicata and Appeals .......................................................................... Convicted Fugitives .................................................................................... Conclusion ..................................................................................................

54 55 60 64 67 72 72 75 76 84 85 88 90 91 101 109 112 114 122 123 126 131 133 134 136 137

Chapter Four Restrictions on Return ................................................................................

138

Introduction ................................................................................................ International Human Rights Law in Extradition Hearings ........................ Capital Punishment and Physical Integrity ................................................ Fair Trial and Other Violations of Human Rights and Extradition Guarantees .............................................................................................. Nationality as a Defence ............................................................................ Military Offences ........................................................................................ Triviality, Passage of Time and Bad Faith ..................................................

138 142 147 163 167 175 177

Contents

ix

Triviality ................................................................................................ Passage of Time ...................................................................................... Bad Faith ................................................................................................ Plea Bargaining .......................................................................................... Specialty .................................................................................................... Immunity & Amnesties ..............................................................................

179 179 182 184 185 189

Chapter Five The Political Offence Exemption ................................................................

193

Introduction ................................................................................................ History ........................................................................................................ The Theory of the Present Law .................................................................. The Pure Political Offence ...................................................................... Délit Complexe ...................................................................................... Délit Connexe ........................................................................................ Politically Motivated Offences .............................................................. National Approaches .................................................................................. The United Kingdom Approach ............................................................ The United States Approach .................................................................. The French Approach ............................................................................ The Swiss Approach .............................................................................. The Irish Approach ................................................................................ Conclusion on the Basis of the Present Law .......................................... The Issues Facing the Political Offence Exemption .................................. Armed Conﬂict and War Criminals ........................................................ Terrorism ................................................................................................ Asylum Seekers ...................................................................................... Politically Motivated Requests .............................................................. Summary ................................................................................................ Responses .................................................................................................. § I Abolition and Western Industrialised Society .................................... Exclusion of Offences ........................................................................ The ECST ...................................................................................... The Anglo-Indian Extradition Treaty ............................................ Inter-American Convention Against Terrorism .............................. United States Statutes .................................................................... Speciﬁc United Nations Responses ................................................ The Swiss Approach Reprised ............................................................ Fair Trial ............................................................................................ Summary ............................................................................................

193 197 200 202 203 204 204 205 206 212 217 218 221 227 228 229 232 242 244 248 249 249 259 261 266 267 269 270 277 281 286

x

Contents

§ II An International Criminal Court ........................................................ Aut Dedere, Aut Judicare .................................................................... Conclusion ..................................................................................................

288 292 300

Chapter Six Irregular Responses to International Crimes ............................................

305

Active De Facto Extradition and the Fugitive’s Rights in the Requesting State .................................................................................... Introduction ............................................................................................ The Common Law Tradition .................................................................. The Civil Law Tradition ........................................................................ International bodies and Active De Facto Extradition .......................... Conclusion .............................................................................................. Extraordinary Rendition ............................................................................ Passive De Facto Extradition and the Fugitive’s Rights in the Requested State ...................................................................................... Conclusion ..................................................................................................

331 345

Chapter Seven Responding to War Crimes, Crimes Against Humanity and Genocide ......

347

Distinguishing war crimes, crimes against humanity and genocide .......... Responding through United Nations Conventions .................................... Extradition and war crimes, crimes against humanity and genocide .......... Asylum, Deportation, Expulsion and Abduction ........................................ Asylum .................................................................................................. Deportation and Expulsion .................................................................... Abduction .............................................................................................. Summary ................................................................................................ Jurisdiction over war crimes, crimes against humanity and genocide ........ Territorial Jurisdiction ............................................................................ Nationals as transnational fugitive offenders .......................................... Universal Jurisdiction ............................................................................ International Criminal Tribunals ............................................................ Conclusion ..................................................................................................

351 361 363 371 371 373 374 375 376 376 377 379 382 415

308 308 310 326 327 328 329

Contents

xi

Chapter Eight Refuge and Return ......................................................................................

417

Introduction ................................................................................................ The interaction of refugee status, asylum and extradition law .................. Extradition and Refugees .......................................................................... Conclusion ..................................................................................................

417 419 425 427

Appendix European Arrest Warrant (extracts) ............................................................ Rome Statute of the International Criminal Court (extracts) ...................... The London Scheme for Extradition within the Commonwealth ..............

429 446 472

Index ..........................................................................................................

485

Preface This is the third version of this book. Each version has been given a new title because in the period since the previous version international criminal law has changed so much that the focus has had to be realigned. In 1991, it was perfectly sensible when writing in the area of ‘international criminal law’ to focus on the law relating to extradition (Aspects of Extradition Law). It was arguable that there was so little international criminal law that the true subject matter was international criminal procedure that was designed to facilitate domestic criminal law. By early 1998, the establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda and the then impending creation of the international criminal court meant that the focus had moved from procedures on to the fugitive offender – hence, Transnational Fugitive Offenders in International Law. The events of 11 September 2001 moved international criminal law to centre stage. However, the international and internationalized courts dealing with, for the most part, genocide, war crimes and crimes against humanity that had been established post-conﬂict meant that there was already a growing acceptance that international crime needed an international response. Moreover, within certain limits, the exercise of universal jurisdiction was increasingly recognised as an appropriate response. Yet despite the newfound interest in international criminal law and the undoubted developments in its substantive content, as well as the establishment of a plethora of courts to deal with genocide, war crimes and crimes against humanity, extradition law is still central. The new tribunals deal with the most serious offenders. They can never be a comprehensive response to the crimes committed that are within their competence. And that is before one acknowledges that many international crimes are outside their purview. Thus, international criminal law, including the exercise of universal jurisdiction as a response, will continue to rely on domestic courts to prosecute transnational fugitive offenders. As such, the law relating to extradition will continue to play its part in ensuring such offenders are brought to justice and prosecuted. Responding to International Crime will entail prosecutions before international, internationalized and domestic courts and, in nearly all cases, some means will need to be in place to ensure the transnational fugitive offender is surrendered to the appropriate body. By comparison with Transnational Fugitive Offenders in International Law, the major changes in this work are as follows: (a) The previous division between international human rights law guarantees and guarantees intrinsic to extradition law are now dealt with in one chapter. Diplomatic Assurances are considered in this new enlarged single chapter.

xiv

Preface

(b) Since 1998, the European Arrest Warrant has been introduced that makes signiﬁcant changes in the way transnational fugitive offenders are to be surrendered within the European Union. Chapters Two and Three deal with this matter. (c) Chapter Three also deals with the developments relating to universal jurisdiction. (d) Chapter Five on the Political Offence Exemption and Chapter Six on Irregular Responses to International Crime have had substantial changes as a consequence of general developments since 1998 and the ones particular to 11 September 2001. (e) The most fundamental change has, however, been made to Chapter Seven, Responding to War Crimes, Crimes Against Humanity and Genocide, in the light of the plethora of new courts and the developments in the jurisprudence relating to those crimes. The law is stated in accordance with the materials available as at 1 December 2005.

Updates The following are the most signiﬁcant matters that have happened since submitting the manuscript. Nigeria transferred Charles Taylor to Liberia from where he was taken to the Special Court for Sierra Leone to stand trial: The Guardian p. 19, 18 March 2006; BBC News website 4857628.stm, 2006/03/29 17:20:40; The Guardian p. 13, 4 April 2006. Consideration is being given to transferring him to The Hague for trial for fear of the unrest the criminal prosecution before the SCSL might spark. On the other hand, it would be more difﬁcult for witnesses to attend any trial in The Hague – The Guardian p. 14, 5 April 2006. Regarding Extraordinary Renditions and the responsibility of Council Of Europe States through which prisoners passed or where they were detained, see European Commission for Democracy Through Law, (Venice Commission), Opinion on the International Legal Obligations of Council of Europe Member States in respect of Secret Detention Facilities and Inter-State Transport of Prisoners, 17 March 2006, Opinion no. 363 /2005, CDL-AD(2006)009 A Spanish court is investigating an allegation by Tibetans that seven retired Chinese leaders committed genocide. There is a possibility that the court might issue arrest warrants based on universal jurisdiction. Beijing has expressed its displeasure. The Guardian p. 19, 21 April 2006. Rachid Ramda has been transferred to France despite fears that some of the evidence against him was obtained from others by illegal methods. He has now been convicted and imprisoned – BBC News website 4857152.stm, 2006/03/29 12:56:07. Thomas Lubanga, leader of UCP, has been handed over to ICC regarding the killing of nine Bangladeshi UN peacekeepers. The Guardian p. 18, 18 March 2006 German national, Khaled el-Masri’s case in the US against the CIA over his kidnap from Macedonia and subsequent extraordinary rendition to Afghanistan where he was allegedly tortured was rejected by the judge on national interest grounds. Judge TS Ellis of the US District Court in Virginia said that “[the result reached here] is in no way an adjudication of, or comment on, the merit or lack of merit of Mr el-Masri’s complaint. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programmes. In times of war, our country, chieﬂy through the executive branch, must often take exceptional steps to thwart the enemy.” BBC News website 4996140.stm, 2006/05/18 23:05:53.

Acknowledgements This book is the result of an interest in the topic ﬁrst engendered during the ﬁnal year of my undergraduate studies some considerable time ago. Many people have been involved in helping me to develop an understanding of how international law responds to international crime and in the production of this book. All the listed academics and professionals have inﬂuenced the following pages in some way. D. Bonner, K.R. Redden, J.N. Moore, W.E. Wells, S.A. Williams, A. Drzemczewski, F.J. Hampson, K. Boyle, N.S. Rodley, S. Peers, M.-C. Roberge, C.J. Greenwood, C. Warbrick, V. Türk. However, especial gratitude is owed to the late Professor Richard B. Lillich who encouraged and guided me during the ﬁnal stages of my SJD. Without him, as mentor and example, anything that is worthy of recognition in this work might never have been written – international law is the less as a result of his untimely death. On the production side, I am indebted once again to Martinus Nijhoff for their assistance in bringing this book to press, especially Annebeth Rosenboom. Their patience as various deadlines came and went is the stuff of legend.

Case List Argentina In re Bohne (1968) 367 In re Don Oscar Mariaca Pando (1926) 204 Australia Barton v Commonwealth of Australia (1974) 337 Brown v Lizars (1905) 322 Re Ditfort, ex p.Deputy Commissioner of Taxation (1988) 186 R v Donyadideh et al. (1993) 272, 275 Hempel v Attorney-General (1987) 27, 72, 173 Polyukhovich v Commonwealth of Australia (1991) 382 Prevato v Governor Metropolitan Remand Centre (1986) 118, 127, 209 Riley v The Commonwealth (1985) 4, 102, 103, 108 Schlieske v Minister for Immigration and Ethnic Affairs (1988) 340, 341, 420 Schoenmakers v DPP (1991) 109 Tse Chu-Fai, Attorney-General (Commonwealth) v Tse Chu-Fai et al. (1998) 53 Wiest v DPP (1988), 135, 136 R v Wilson, ex p.Witness T, (1976) 368 Austria Georg K v Ministry of the Interior (1969) 423 The Hungarian Deserter (Austria) Case (1959) 242, 296 The Service of Summons in Criminal Proceedings (Austria) Case (1962) 168 The Universal Jurisdiction (Austria) Case (1958) 296 Belgium Decorte v Société Anonyme Groupe d’Assurance Nedlloyd (1971) 187, 188 Geldof v Meulemeister and Steffen (1961) 326 Ryan (1988) 68, 79, 194 Bosnia-Herzegovina Boudellaa, Lakhdar, Nechle and Lahmar v Bosnia and Herzegovina and the Federation of BiH (2002) 342 Brazil In re Banegas (1948) 175 In re Kahrs (1948) 365

xviii

Case List

Burma Sitaram v Superintendent Rangoon Central Jail (1957) 334 Canada Re Fedorenko (No. 1) (1910) 199 R v Finta (1994) 382 Re Gil and the Minister of Employment and Immigration (1994) 209, 244, 423 Hagerman v United States (1991) 108 Re Hartnett and Hudson and The Queen (1973) 325 Jaffe v Miller et al. (1991) 311, R v Jewitt (1983) 325 Libman v The Queen (1986) 77, 83, 174 R v MacDonald (1982) 186 Re Meier and The Queen (1984) 135 Minister of Citizenship and Immigration v Léon Mugesera, Gemma Uwamariya, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie-Grâce Hoho – and – League for Human Rights of B’nai Brith Canada, PAGERWANDA, Canadian Centre for International Justice, Canadian Jewish Congress, University of Toronto, Faculty of Law – International Human Rights Clinic, and Human Rights Watch (2005) 339, 381 R v Parisien (1988) 186 Piperno, Republic of Italy v Piperno (1982) 124 Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 423 Rajovic, Re Socialist Federal Republic of Yugoslavia and Rajovic (No. 2) (1982) 103 Ranville, Minister of Indian Affairs and Northern Development v Ranville (1982) 135 Rauca, R and F.R.G. v Rauca (1983) 352, 370, 382 Romania v Cheng (1997) 70, 89, 110 R v Salvador, Wannamaker, Campbell and Nunes (1981) 79 Re State of Wisconsin v Armstrong (1972) 205, 239 United States v Burns (2001) 138, 159 Re USA and Smith (1984) 125 Cayman Islands In the Matter of Campuzano (1983) 64 Colombia Re Bachnofer (1963) 43 Denmark In re Issel (1950) 363

Case List

xix

France Abu Daoud (1977) 195, 218, 241, 286, 302 Re Argoud (1964) 326 Astudillo-Calleja (1977) 247–248 Aylor (1993) 46, 149 Barbie (1985) 326, 352, 355, 358, 362, 374, 276 Berechiartua-Echarri (1988) 427 Re Colman (1947) 218 Croissant (1978) 43, 218, 239, 286 Fidan (1987) 46, 149 In re Galdeano, Ramirez and Beiztegui (1985) Re Giovanni Gatti (1947) L’Affaire Gouvernement Suisse (1995) In re Hennin (1967) 233 In re Inacio do Palma (1967) 218 Koné (1996) 248 Piperno and Pace (1979) 218, 239 In re Rodriguez (1953) 218 Royaume-Uni de Grand-Bretagne et d’Irlande du Nord et Gouverneur de la Colonie royale de Hong-Kong (1993) 71 In re Speissens (1949) 366 Touvier (1992–94) 376 Urdiain Cirizar (1992) 248 In re Urios (1921) 86, 87 Germany Antonin L v F.R.G. (1979) 274, 423 Baader-Meinhof Case (1977) 202, 205 Border Guards Prosecution Case (1992) 76, 387 Espionage Prosecution Case (1991) 51, 86, 203 Ferrini v Federal Republic of Germany (Cass. Sez. Un. 5044/04) (2004) 350 Residence Prohibition Order Case (No. 2) (1968) 340, 366 Spanish-German Extradition Treaty Case (1926) 186, 201 Yugoslav Terrorism Case (No. 2) (1978) 205 Ghana The State v Schumann (1966) 4, 366 Holy See Re Marcinkus, De Strobel and Mennini (1987) 190 Hong Kong and HKSAR Re Chong Bing Keung (No. 2) (2000) 53

xx

Case List

India Daha Singh Lahoria v Union of India (2001) 186 State of Madras v Menon (1954) 38 Ireland Bourke v Attorney-General (1972) 203 Byrne v Conroy (1995) 112 Clarke v McMahon (1990) 221 Ellis v O’Dea (No. 2) (1991) 221, 277, 278 Finucane v McMahon (1990) 204, 224, 225, 226, 238, 283 Fusco v O’Dea (1994) 126, 178, 297 Langan v O’Dea (1996) 179 McDonald v Bord na gCon (1965) 222 McGlinchey v Wren (1982) 121, 220, 221, 222, 225, 239, 263, 277 McNally v O’Toole (2002) 181 Magee v O’Dea (1994) 223, 226, 263 Quinlivan v Conroy No. 2 (2000) 62, 179, 221, 226 Quinn v Wren (1985) 198, 222, 223, 224, 225, 226, 239, 277 Russell v Fanning (1988) 222–24, 225, 277 Shannon v Fanning (1984) 221, 222, 225, 241, 263, 277 Sloan v Culligan (1992) 223, 225, 226 The State (Duggan) v Tapley (1952) 201 The State (Furlong) v Kelly (1971) 102, 106 The State (Jennings) v Furlong (1966) 185 The State (Quinn) v Ryan (1965) 41 The Tuite Case (1982) 239, 297 Israel Attorney-General of the Government of Israel v Adolf Eichmann (1960) 88, 101, 308–10, 314, 327, 328, 352, 367, 374–75, 379, 380 Italy Re Cuillier, Ciamborrani and Vallon (1979) 148 Re Hawkins (1992) 159 In re Korosi (1925) 169, 247 Re Lane Case No. 2266 (1986) 159 In re Pavelic and Kwaternik (1934) 4 In re Rukavina (1949) 363 Japan State of Japan v Mitsuyo Kono and Takao Kono (1971) 239, 340 Luxembourg Atkinson v Ministère Public (1988) 79

Case List

xxi

Malaysia Chua Han Mow v Superintendent of Pudu Prison (1979) 52, 117 Mauritius Ex parte Deprez and Fontaine (1976) 126 Heeralall v Commissioner of Prisons, and Republic of France v Heeralall and the Attorney-General (1992–93) 52, 138 The Netherlands CDS v The Netherlands (1990) 25, 79, 148 CvH v The Netherlands (1984–85) 186, 340 DC v Public Prosecutor (1972) 51, 52 In re Flesche (1949) 373, 374, 377 Folkerts v Public Prosecutor (1978) 208, 277 Folkerts v State Secretary of Justice (1978) 282, 426 GK and McF v The Netherlands (1986) 165, 209, 277, 282 JK v The Public Prosecutor (1981) 362 KM v The Netherlands (1987) 169, 181 M v Federal Prosecutor (1977) 142 McF v The Netherlands (1986) (see GK and McF v The Netherlands, supra) MY v Public Prosecutor (1983) 169, 182 RHK v The Netherlands (1985) 326 Viaux-Peccate v The State of Netherlands (1978) 46, 148 Wallace v The State of Netherlands (1963) 339 New Zealand In re Ashman (1985) 38 R v Hartley (1978) 322, 323, 325 Seychelles R v Meroni (1973) 51 Sierra Leone Lansana v R (1971) 52 South Africa Abrahams v Minister of Justice (1963) 325 Mohamed v President of the RSA (2001) 159, 341 S v December (1995) 325 The State v Ebrahim (1992) 325, 327 The State v Heymann and Dinzaka (1966) 325 The State v Oosthuizen (1976) 52 Sri Lanka Ekanayake v The Attorney-General (1986) 272, 274

xxii

Case List

Sudan In the Trial of F.E. Steiner (1971) 201, 202 Sweden Public Prosecutor v Antoni (1960) 85 Switzerland C v Federal Police Department (1987) 61, 148 Della Savia v Ministère Public de la Confédération (1969) 200 The Dharmarajah Case (1981) 160 E v Police Inspectorate of Basle (1979) 174 In re G (1997) 97, 380 In re Kaphengst (1929) 219 Re Kavic, Bjelanovic and Arsenijevic (1952) 219, 242 Kroeger v Swiss Fed. Prosecutor’s Ofﬁce (1966) 367 Ktir v Ministère Public Fédéral (1961) 219–20 M v Federal Dep’t of Justice and Police (1979) 52, 102, 106 Malatesta (1902) 199 Marcos and Marcos v Federal Department of Police (1989) 99 In re Nappi (1952) 218 In re Noblot (1928) 4, 366 In re Pavan (1927) 219, 256, 278, 366 T v Swiss Fed. Prosecutor’s Ofﬁce (1966) 26, 42, 169, 197, 247 Watin v Ministère Public Fédéral (1964) 208, 219, 259 In re Zahabian (1963) 27 United Kingdom A et al. v SSHD (2004) 130 A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) (2004), A and others (Appellants) (FC) and others v Secretary of State for the Home Department (Respondent) (Conjoined Appeals) (2005) 130–31 R v Abdul Hussain (1998) 423 Abdullah, R (on the application of Abdullah) v Secretary of State for the Home Department (2001) 71, 175 Adan and Aitseguer, Regina v Secretary of State for the Home Department, ex parte Adan, Regina v Secretary of State for the Home Department, ex parte Aitseguer (2001) 421 In re Al-Fawwaz (2002) 76, 90, 130 Regina (Al-Fawwaz, Abdel Bary, Eidarous) v Governor of Brixton Prison and another (2001) 425 Al Skeini v Secretary of State for Defence (2005) 75, 350 R v Anderson (1868) 78 Armah v Government of Ghana (1968) 246 Armas, Ofﬁce of the King’s Prosecutor, Brussels (Respondents) v Armas (Appellant) and others, (2005) 69, 71

Case List

xxiii

Aronson, Government of Canada v Aronson (1990) 106 Re Arton (No. 1) (1896) 67, 152, 182, 283 Re Arton (No. 2) (1896) 70, 104 Re Asliturk (2002) 184 Atkinson v United States of America Government (1971) 70, 135, 283 In re Bellencontre (1891) 104 Bennett v Horseferry Road Magistrates’ Court (1994) 8, 323–24 R v Berry (1985) 110 R v Bertrand (1867) 125 Bici and another v Ministry of Defence (2004) 350 Bleta, Government of Albania v Bleta (2005) 29 Budlong, R v Pentonville Prison Governor, ex p.Budlong and Kember (1980) 104–05, 106, 197, 247 Bugdaycay, R v Secretary of State for Home Affairs, ex p.Santis, Norman and Bugdaycay (1987) 279 In re Burke (2001) 136 Carlyle-Clarke v SSHD (2004) 71 In re Castioni (1891) 205, 207, 209, 210, 213, 214, 218, 220, 239, 260, 364, 366 Chateau-Thierry, R v Secretary of State for Home Affairs, ex p.Duke of Chateau Thierry (1917) 336, 337, 338 Cheng v Pentonville Prison Governor (1973) 4, 195, 208, 209–10, 214, 218, 223, 239, 267, 277, 292, 339 Chetta, R v Secretary of State for the Home Department, ex p.Chetta (1996) 63 R v Chief Metropolitan Stipendiary Magistrate, ex p.Secretary of State for the Home Department (1989) 112 Christian and others v R (2004) 75 Re Clemetson (1955) 179 Convery v High Court of Rotterdam (2005) 71, 72 R v Cox (1961) 78 In re Davidson (1976) 187 Re Davies (1997) 178 Davies, R v Uxbridge Justices ex p.Davies (1981) 186 De Canha v Portugal (1997) 116 R v Dean and Bolden (1998) 323 R v Dix (1902) 104 Dowse v Governor of Pentonville Prison (1983) 124 Driver, R v Plymouth Magistrates Court et al., ex p.Driver (1985) 322–23 Dunlayici, R v Governor of Belmarsh Prison and Another, ex parte Dunlayici (1996) 210 Ecke, R v Governor of Pentonville Prison, ex p.Ecke (1974) 104 Elliot, R v O/C Depot Battalion, RASC Colchester, ex p.Elliot (1949) 320, 321, 323 Elliott, R v SSHD, ex p.Elliott (2001) 183 Fernandez v Government of Singapore (1971) 179 Ferrandi v The Governor of Brixton Prison and the Government of Italy (1981) 204, 207, 209, 277

xxiv

Case List

Francis, R v Governor of Belmarsh Prison, ex p.Francis (1995) 129 R v Galbraith (1981) 117 Gardner, R v Brixton Prison Governor, ex p.Gardner (1968) 106 Re Gesugrande (1996) 181 Re Gilligan (2000) 166 Government of Greece v Governor of Brixton Prison (1971) 283, 301 Re Gross, ex p.Treasury Solicitor (1968) 368 Re Gross (1998) 126 Re Guerin (1888) 125 Hagan, R v Secretary of State for the Home Dep’t, ex p.Hagan (1993) 178 Hammond, R v Metropolitan Police Commissioner, ex p.Hammond (1964) 41 Healy, Re the Habeas Corpus Application of Carthage Healy (1984) 64 Healy, R v Guildford Magistrates Court, ex p.Healy (1983) 322, 323 Hill, R v Secretary of State for the Home Dep’t, ex p.Hill (1997) 181 Hosenball, R v Secretary of State for Home Affairs, ex p.Hosenball (1977) 339 Hughes v Government of Denmark (1994) 180, 181 Huntington v Attrill (1893) 15 R v Ismail (1997) 77, 80 Re Ismail (1998) 62 R v Jacobson and Levy (1931) 117 Jarrett-Thorpe, R v Guildhall Magistrates, ex p.Jarrett-Thorpe (1977) 190 Johnstone v Pedlar (1921) 169 Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya and another; Mitchell and others v Al-Dali and others (2004) 75, 350 Joyce v DPP (1946) 86, 109 Re Kahan (1989) 28, 38 Kakis v Government of the Republic of Cyprus (1978) 177, 179, 180–81, 207 R (on the application of Karpichkov and another) v Latvia and the Republic of South Africa (2001) 425 R (Kashamu) v Governor of Brixton Prison (2002) 68 Re Kexel and Tillman (1984) 204, 207, 209, 211 Khubchandani, R v Governor of Pentonville Prison, ex p.Khubchandani (1980) 74 Kirby, R v Governor of Pentonville Prison, ex p.Kirby (1979) 117 Kolczynski, R v Governor of Brixton Prison, ex p.Kolczynski (1955) 195, 207, 214, 219, 242, 243, 246 Launder, R v Secretary of State for the Home Department, ex p.Launder (1996) 53, 71, 180, 183, 189 Lee, R v Governor of Pentonville Prison, ex p.Lee (1993) 189 Levin, R v Governor of Brixton Prison, ex p.Levin (1997) 126 Re Lodhi (2001) 30, 40, 166, 167 Re McAliskey (1997) 61, 134, 173, 178 McCaffery, Government of the USA v McCaffery (1984) 107 In re McFadden (1982) 185 Mackeson, R v Bow Street Magistrates, ex p.Mackeson (1981) 321–22, 323 Mani v The Governor of Brixton Prison (1998) 181

Case List

xxv

Markus, Secretary of State for Trade v Markus (1976) 80, 110 In re Meunier (1894) 199, 226 Miller, R v Secretary of State for the Home Department, ex p.Miller (1999) 84 Minervini, R v Governor of Brixton Prison, ex p.Minervini (1959) 78 R v Moussa Member et al. (1983) 297 R v Mullen (1999) 341 Narang, Union of India v Narang (1977) 179–81 Nielsen, R v Chief Metropolitan Magistrate, ex p.Government of Denmark (1984) 187 In re Nielsen (1984) 27, 69, 107 Re Osman (1990) 180, 182–83, 189, 190 R v Page (1953) 78 Peci v Governor of Brixton Prison (2000) 29, 136 Pinochet, R v Bartle and the Commissioner of Police for the Metropolis and others, ex p.Pinochet (1998) (Pinochet 1); R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2) (2000) (Pinochet 2); R v Bartle and the Commissioner of Police of the Metropolis, ex p.Pinochet (1999) (Pinochet 3). 90, 91, 93, 95, 98, 100, 101, 137, 189, 190, 413 Postlethwaite, Government of Belgium v Postlethwaite (1988) 66, 115 Pratt and Morgan v Attorney-General of Jamaica (1993) 156 Re Ramda and Boutarfa (1997) 183 Ramda, R (on the application of Ramda) v Secretary of State for the Home Department (2002) 70, 130 Rebott, R v Governor of Pentonville Prison, ex p.Rebott (1978) 203 Rees v Secretary of State for the Home Department (1986) 69, 90 Rey v Switzerland (1999) 107 Re Reyat (1989) 101, 110, 123–24, 180 R v Roche (1775) 174 Rush, R v Governor of Brixton Prison, ex p.Rush (1969) 77 Sacksteder, R v Superintendent of Chiswick Police Station, ex p.Sacksteder (1918) 337 Sang, DPP v Sang (1980) 321 Sansom, R v Sansom, Smith, Williams and Wilkins (1991) 81 R v Sawoniuk (2000) 381 Schmidt v Federal Government of Germany (1994) 70, 116, 324 Schtraks v Government of Israel (1964) 117, 202, 205, 207, 209, 229, 245, 248, 267, 287, 293, 418 Ex p.Susannah Scott (1829) 320 Sharf, R v Garrett, ex p.Sharf et al. (1917) 321, 323 Sinclair v DPP (1991) 69, 70 Singh, R v Governor of Pentonville Prison, ex p.Singh (1981) 124 Soblen, R v Governor of Brixton Prison, ex p.Soblen (1962) 15, 203, 334–36, 338–39, 340, 342 Somchai Liangsiriprasert v Government of the USA (1990) 80, 87, 111 Sotiriardis, Government of the F.R.G. v Sotiriardis (1975) 65, 66

xxvi

Case List

R v SSHD and others (1996) 183, 188 T v Immigration Ofﬁcer 4 T v Secretary of State for the Home Department (1996) 198, 202, 208, 220, 240, 242, 244, 278, 279, 423 Tal, R v Greater Manchester Coroner, ex p.Tal (1984) 323 Teja, R v Governor of Pentonville Prison, ex p.Teja (1971) 66, 179, 189–90, 306 Treacy v DPP (1971) 80, 174 Ullah and Do, R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department (2004) 331 Venicoff, R v Leman Street Police Station Inspector, ex p.Venicoff (1920) 336 Re Vitale (1995) 181 Re Vito Dell’Aglio (1997) 123, 178 In re Windsor (1865) 104 Youssef v Home Ofﬁce (2004) 341 Zaradari v SSHD (2001) 130 Zezza, R v Governor of Pentonville Prison, ex p.Zezza (1983) 136 R v Zossenheim (1903) 125 United States Argento v Horn (1957) 51, 127, 373 Arnbjornsdottir-Mendler v United States (1983) 51 The Artukovic Case (1954–59) 214, 218, 232, 245, 363, 365–66, 369 Artukovic v INS (1980) 118, 372 Artukovic v Rison (1986) 134, 215, 232, 245, 369, 370, 373 Atta, Extradition of Atta, Ahmad v Wigen (1990) 68, 89, 134, 205, 214, 215, 216, 217, 230, 246, 314, 342, 369 Bingham v Bradley (1916) 125 Caplan v Vokes (1981) 105, 107 Caputo v Kelly, President of the US, ex rel.Caputo v Kelly (1937) 127 Chandler v United States (1948) 51, 419 Cheung v USA (2000) 53 Collins v Loisel (1922) 107, 124, 127 Re Extradition of Contreras (1992) 130 Cook v United States (1933) 314 Cucuzzella v Keliikoa (1981) 105, 106 Demjanjuk, In re the Extradition of Demjanjuk (1985) 368, 380 Demjanjuk v Petrovsky (1986) 368, 380 In re Doherty (1984) 135, 214, 215, 216–17, 230, 241, 285 Doherty v United States Department of Justice, INS (1990–92) 340 Dwomah v Sava (1988) 198 Eain v Wilkes (1981) 200, 214, 215, 216, 217, 366, 369 Emami v United States District Court for N.D. California (1987) 128 Escobedo v United States (1980) 173, 205 Ezeta, In re Ezeta (1894) 204, 213, 214, 364 Factor v Laubenheimer (1933) 107

Case List

xxvii

Foley v Connelie (1978) 316 Frisbie v Collins (1952) 310, 311, 312, 313, 315, 316 Gallina v Fraser (1959) 68, 108 Geisser v The United States (1975–80) 184–85 Gerstein v Pugh (1975) 312, 315 Glucksman v Henkel (1922) 118 Graham v Richardson (1971) 316 Hamdan v Rumsfeld (2005) 164 Hamndi v Rumsfeld (2004) 164 Holmes v Jennison (1840) 15 Hooker v Klein (1978) 135 In re Extradition of Howard (1993) 69, 152, 283 Jaffe v Boyles (1985) 311, 312 Jaffe v Smith (1987) 311, 312, 314 Jimenez v Aristeguieta (1962) 214, 245 Kadic v Karadzic (1996) 349 Kear v Hilton (1983) 309, 311 Ker v Illinois (1886) 310, 311, 312, 313, 315, 316, 317, 419 Kinsella v US, ex rel.Singleton (1960) 316 Knauf v Shaughnessy (1949) 420 Koskotas v Roche (1991) 246 Lobue v Christopher (1995) 72 In re Locatelli (1979) 214, 246 In re LoDolce (1952) 51, 377 Lopez-Smith v Hood (1997) 178 Lujan v Gengler, US, ex rel.Lujan v Gengler (1975) 314 In the Matter of McMullen (1980) 215 McMullen v United States (1991–93) 215 In the Matter of Mackin (1981) 135, 215 Mapp v Ohio (1961) 313 Matta-Ballesteros v Henman (1990) 315 Melia v United States (1981) 77, 110, 111, 185 Miranda v Arizona (1966) 313 Mitchell v Harmony (1852) 316 Najohn v United States (1986) 186, 187 Neely v Henkel (1901) 68 Ntakirutimana v Reno (1999) 128 Oen Yin Choy v Robinson (1988) 105, 124, 125, 128, 189 Olmstead v United States (1928) 318 Ornelas v Ruiz (1896) 214, 215, 369 Parretti v United States (1997) 62, 66 Peters v Egnor (1989) 105 Prushinowski, In the Matter of the Extradition of Prushinowski (1983) 105, 107 Prushinowski v Samples (1984) 112 Quinn v Robinson (1986) 118, 214, 215, 216, 217, 246, 280, 366

xxviii

Case List

Rasul v Bush (2004) 164 Rocha v United States (1961) 87 Re Ryan (1973) 368 Sakaguchi v Kaulukukui, US, ex rel.Sakaguchi v Kaulukukui (1975) 127, 128 Sindona v Grant (1980) 118, 197, 214, 246, 247 Sosa v Alvarez-Machain (2004) 319 Stockwell v United States (1969) 316 Stone v Powell (1976) 312 Suarez-Mason, In the Matter of the Extradition of Suarez-Mason (1988) 245 Tel-Oren v Libyan Arab Republic (1984) 233 Terlinden v Ames (1902) 16 United States v Alvarez-Machain (1990–95) 316–17, 318, 319 United States v Archer (1973) 313 United States v Best (2002) 317 United States v Cordero (1981) 313, 315, 316 United States v Crews (1980) 312 United States v Darby, Yamanis & Calise (1984) 315 United States v Demjanjuk (2004) 349, 369, 373 United States v Doherty (1981) 135 United States v Gonzalas (1963) 302 United States v Herrera (1974) 315 United States v Layton (1981) 79, 84, 85, 87, 89 United States v Lira (1975) 314, 321 United States v Lovato (1975) 315, 316 United States v Lui Kin-Hong (1997) 53, 68, 118, 128, 189, 215 United States v Noriega (1990–97) 68, 79, 191, 315, 317, 319, 347 United States v Orsini (1976) 314 United States v Puentas (1995) 186 United States v Rauscher (1886) 187, 311 United States v Salzmann (1975) 338 United States v Smyth (1992–96) 69, 152, 215, 246, 283, 285 United States v Suerte (2002) 87 United States v Toscanino (1974) 312–16, 323, 325, 326, 327 United States v Tuttle (1992) 52 USA v Usama Bin Laden et al. (2001) 159 United States v Valot (1980) 315 United States v Verdugo-Urquidez (1991) 316, 317 United States v Williams (1980) 315 United States v Yunis (1991) 90, 92 Valentine v US, ex rel.Neidecker (1936) 15, 43 Wacker v Bisson (1965) 135 Whitney v Robertson (1888) 212 Wright v Henkel (1902) 62, 105, 107 Zanazanian v United States (1984) 124, 127

Case List

xxix

Zambia Miyanda v The Attorney-General (1992) 325 Zimbabwe Beahan v The State (1991) 326, 328 Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General et al. (1993) 153 American Court of Human Rights Cases Advisory Opinion, No. OC-1/82 139 Committee Against Torture Agiza v Sweden (2005) 161 Hanan Ahmed Fouad Abd El Khalek Attia v Sweden (2003) 161 European Court of Human Rights Cases App. 1936/63, The Neumeister Case (1963) 65 App. 1983/63, X v The Netherlands (1963) 65 App. 2143/64, X v Austria and Yugoslavia (1964) 65 App. 3110/67, X v Germany (1967) 65 App. 5961/72, Amekrane v United Kingdom (1972) 149 App. 7317/75, Lynas v Switzerland (1975) 66 App. 7438/76, Ventura v Italy (1976) 65 App. 7456/76 v Belgium (1976) 139 App. 8299/78, X and Y v Ireland (1981) 163, 284 App. 9012/80, X v Switzerland (1980) 24, 160 App. 9203/80 v Denmark (1980) 139 App. 9604/81, X v Germany (1983) 66 App. 9742/82 v Ireland (1983) 143 App. 10032/82 v Sweden (1984) 139, 150 App. 10227/82 v Spain (1984) 142 App. 10292/83 v Spain (1984) 143, 150 App. 10479/83 v United Kingdom (1984) 125, 143, 151 App. 10940/86 v France (1986) 151 Airey v Ireland (1978) 300 Akdivar and others v Turkey (1996) 9 Aksoy v Turkey (1996) 9 Altun v Germany (1983–85) 139, 150, 151, 262 Artico (1980) 284 Aydin v Turkey (1997) 262 Aylor v France (1994) 143, 153 Aytekin v Turkey (1997) 415 Bankovic v Belgium et al. (2001) 330 Bilasi-Ashri v Austria (2002) 160, 421 Bonnechaux v Switzerland (1979) 65, 168

xxx

Case List

Bozano v France (1986) 62, 308, 342, 345, 374 Brogan v United Kingdom (1988) 239, 284 Chahal v United Kingdom (1996) 154, 160, 161, 262, 267, 284, 336, 338, 342, 344, 424 Cruz Varas v Sweden (1991) 145 Dougoz v Greece (2001) 163 Drozd and Janousek v France and Spain (1992) 164 Fox, Campbell and Hartley v United Kingdom (1990) 140, 227, 283 Ilascu v Moldova and Russia (2004) 330 Ireland v United Kingdom (1978) 262 Issa v Turkey (2004) 330 Kalashnikov v Russia (2002) 163 Kaya v Turkey (1998) 415 Mahmut Kaya v Turkey (2000) 415 Kiliç v Turkey (2000) 330 Klass v F.R.G. (1979) 303 Kolompar v Belgium (1992) 64 Kozlov v Finland (1991) 155, 164 Mamatkulov and Askarov v Turkey (2005) 143, 145, 161 Mentes and others v Turkey (1997) 9 Nachova v Bulgaria (2005) 93 Naletilic v Croatia (2000) 45, 166 Osman v United Kingdom (1998) 300 Öcalan v Turkey (2005) 343–45 Quinn v France (1995) 66 Sanchez-Reisse v Switzerland (1986) 66 Scott v Spain (1997) 62, 64, 66 Shkelzen v Germany (2000) 169 Soering v United Kingdom (1989) 141, 152, 153, 154, 155, 164, 178, 284, 301, 330, 331, 421 Yang Chun Jin alias Yang Xiaolin v Hungary (2001) 160, 183 European Court of Justice Conclusions de l’Avocat Général M. Dámaso, Esbroeck c Openbaar Ministerie, l’Affaire C-436/04 (2005) 175 Miraglia, Case C-469/03 (2005) 175 Human Rights Committee A. R. J. v Australia 158 Alzery v Sweden 144 Antonaccio v Uruguay 146 Ashby v Trinidad and Tobago 146 Jonny Rubin Byahuranga v Denmark 161 Chaplin v Jamaica 156 Everett v Spain 144

Case List

xxxi

Francis v Jamaica 156 Mrs G. T. v Australia 158 Glaziou v France 140 Johnson v Jamaica 156 Judge v Canada 157–58 Kindler v Canada 43, 139, 141, 156 Lopez Burgos v Uruguay (submitted by Delia Saldias de Lopez) 330 Ng v Canada 157 Piangdiong et al. v The Philippines 146 Piscioneri v Spain 143 Sholam Weiss v Austria 144 Wright v Jamaica 157 International Court of Justice and Arbitral Commissions The Arrest Warrant Case, Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic Of The Congo v Belgium), (2002) 7, 95–97, 190, 297, 380, 398, 413, 414 The Asylum Case (Colombia v Peru) (1950) 31 Barcelona Traction, Light and Power Co. Case, (Belgium v Spain) (1970) 25 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia-Herzegovina v Yugoslavia) (1996) 361 The Cutting Case (Mexico v US) (1886) 88–89 The Galvan Case (Mexico v US) (1927) 299 The Lawler Incident (1860) 308 Lockerbie, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v United Kingdom and the USA (1992) 274, 275, 391 Nicaragua v USA (1986) 31, 298, 307 North Sea Continental Shelf Cases (1969) 294 The Savarkar Arbitration (France v UK) (1911) 308 The Steamship Lotus Case (France v Turkey) (1927) 12, 78, 83, 88, 110, 379, 380 The Temple Case (Cambodia v Thailand) (1962) 308 Western Sahara Advisory Opinion (1975) 236 Yerodia case, see Arrest Warrant Case (2002) International Criminal Tribunal for the former Yugoslavia Prosecutor v Blagojevic and Jokic 354 Prosecutor v Blaskic 133, 360, 389 Prosecutor v Brdjanin 353, 354 Prosecutor v Dokmanovic 327 Prosecutor v Furundzija 360 Prosecutor v Jelisic 353 Prosecutor v Kordic and Cerkez 360 Prosecutor v Krstic 353, 355, 357 Prosecutor v Kunarac, Kovac, Vukovic 359, 360

xxxii

Case List

Prosecutor v Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic, Vladimir Santic, also known as “Vlado”, Lasva Valley 392 Prosecutor v Limaj, Bala and Musliu (2003) 403 Prosecutor v Milosevic 403 Prosecutor v Mrksic and Others 359, 388 Prosecutor v Nikolic 327, 375 Prosecutor v Sikirica, Kolundzija and Dosen 355 Tadic v Prosecutor 45, 47, 48, 91, 126, 230, 357, 360, 381, 385, 387, 388, 389, 390, 398 International Criminal Tribunal for Rwanda Prosecutor v Jean-Paul Akayesu 352, 354, 360, 393 Prosecutor v Théoneste Bagosora 392 Jean-Bosco Barayagwiza v Prosecutor 327, 350 Prosecutor v Kayishema and Ruzindana 355 Niyetegeka v Prosecutor 354 International Military Tribunal at Nuremberg Re List (1948) 351 Special Court for Sierra Leone Prosecutor v Fofana (2004) 394 Prosecutor v Gbao (2004) 394 Prosecutor v Kallon and Kamara (2004) 397 Prosecutor v Kondewa (2004) 394 Prosecutor v Norman, Kallon and Gbao (2003) 397 Prosecutor v Taylor (2004) 397, 398 Special Panels of East Timor Public Prosecutor v Armando dos Santos 402

Chapter 1 International Criminals and the Legal Process 1. Introduction If there was ever any doubt that international criminal law existed,1 the promulgation of the Statute of the International Criminal Court in 19982 has clearly established that with respect to the crimes set out in Article 5,3 there is an international criminal tribunal with general jurisdiction to investigate and prosecute. Admittedly,

1

2

3

Mueller recounted in the early 1970s the somewhat tongue-in-cheek hypothesis that there must be such a thing as international criminal law because the subject is taught by professors in law schools. See Mueller & Besharov, The Existence of International Criminal Law and Its Evolution to the Point of its Enforcement Crisis p. 5, in BASSIOUNI & NANDA, 1 A TREATISE ON INTERNATIONAL CRIMINAL LAW (1973). Statute of the International Criminal Court, Rome, July 1998, 37 ILM 999 (1998). http:// www.un.org/law/icc/statute/romefra.htm. Supra n2. Article 5 – Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

2

Chapter 1

the crimes that can be prosecuted before the ICC are somewhat restricted. Nevertheless, it is no longer possible to deny that there is true international criminal law, not simply certain international crimes to be tried by international tribunals with limited remits, nor mere international criminal procedure that allows for international co-operation in the enforcement of domestic criminal law. On the other hand, if one focused solely on the ICC, that would miss the vast majority of criminals whose crimes have international, including transnational, aspects. The Statute of the ICC is not the complete measure of international criminal law. For the full picture of how international law responds to international crimes, one has to have regard to various types of transnational fugitive offender: a) Those committing international crimes as established by various international treaty regimes and sometimes capable of prosecution before an international tribunal of some sort; b) Those committing a crime with transnational aspects; c) Those committing a domestic crime who then ﬂee across an international border. All three types of transnational fugitive offender may raise issues of international law as the international community seeks to respond, whether that be through trial before the ICC or simply by returning the fugitive to stand trial before some domestic court. This book will address how the international community has sought to respond to crimes that have, in some way, an international or transnational aspect. The classical response to international crime is to be found in extradition law: the accused or, in some cases, the convicted fugitive would be returned to a State with jurisdiction, ordinarily based on the principles of territoriality or nationality, to prosecute or to complete the execution of any sentence. Except in those cases where a State with jurisdiction to prosecute based on territoriality or nationality has custody of the offender, some form of rendition, either to another State or to an international criminal tribunal, will be necessary. Unless collusive deportation or abduction are utilized, then that rendition will employ extradition law or a process that developed out of extradition procedures. The greater ease of movement and communication in the last thirty to forty years has meant that crimes increasingly have cross-frontier elements or that the criminal has been able to cross a frontier having perpetrated the crime. This has

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 deﬁning the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

International Criminals and the Legal Process

3

drawn attention to the limitations of extradition law.4 In addition, the increased instability following the break up of the former Soviet Bloc, the new world ‘disorder’, with the concomitant wars which were predominantly non-international armed conﬂicts, led to a proliferation of particularly heinous international crimes which the international community has sought to ensure, with varying degrees of success, have not been not treated with impunity. As such, alternative mechanisms to secure prosecution have been put in place. Jurisdiction over international and transnational crimes has been more readily extended to States beyond those with claims based on the territoriality or nationality principles; international criminal tribunals of various sorts have been established, even in cases where the crime was wholly committed within one State. One can, furthermore, recognize a greater expectation that international law ought to be able to respond and prosecute certain types of offender – even to the extent that anything that hinders that process, including procedural guarantees or international human rights law, is a threat to the security of the international community. There is a general failure to recognize that the greatest hindrance to the prosecution of international criminals and transnational fugitive offenders is jealously guarded State sovereignty and the lack of international institutions that mirror those developed at the domestic level, such as a generic international criminal court. It will inevitably take longer to implement properly a just regime of international criminal prosecution than if the accused had been apprehended in the locus delicti where there was still a working criminal justice system available to respond to his alleged crimes. On the other hand, it should always be borne in mind that the alternative is the that international criminal or the transnational fugitive offender escapes all punishment – delay is better than impunity.

1.1 Extradition Where an accused is wanted for trial in another State, then his surrender to that State should be under the system of extradition laws. Extradition arrangements between States, either on a bilateral or multilateral basis, provide a means, the normatively preferred means, by which an accused person can be transferred to face prosecution. The extradition process under these international arrangements is carried out in the domestic courts and tribunals of the requested State, either because the treaty is self-executing under that State’s laws or the State has passed implementing

4

As described by The Observer as long ago as 1979, extradition is a “creaking steam-engine of an affair” – p. 4, 29 April 1979. According to a former US Attorney-General, the present extradition law belongs to “the world of the horse and buggy and the steamship, not in the world of commercial jet air transportation and high speed telecommunications” – from a letter to Senator Edward Kennedy from former U.S. Attorney-General Benjamin R. Civiletti. See 126 CONG.RECORD §13233 at §13235 col. 2.

4

Chapter 1

legislation. It is this interplay of international processes effected through domestic courts, processes which incorporate guarantees of rights for the accused, that makes it possible to talk of an international law of extradition, even though it is part of domestic legal systems. This international context is recognised in extradition cases which draw on other jurisdictions’ experiences. Two factors contribute towards making a wide ranging overview of individual State practice sufﬁciently comprehensive to be worthwhile. First, States tend to try and keep their international extradition agreements relatively uniform. This practice means that particular provisions are repeatedly incorporated, and not just in individual State’s treaties but in all extradition treaties – international drafters use successful precedents just as much as domestic lawyers.5 Furthermore, domestic legislation reﬂects treaty provisions.6 In comparative terms, extradition laws are very similar. Since the extradition system in all States is designed to achieve the same ends, then there is no problem of dysfunctional comparison between the laws of different States. Moreover, as will be seen, some of the great distinctions of the past between the civil law and common law traditions, such as the non-extradition of nationals and the prima facie case requirement, are becoming the subject of compromises, such that there is an increasing convergence of State practice. The second reason why it is possible to be conﬁdent that a wide-ranging study of individual State practice will be relevant to all systems is that courts hearing extradition cases frequently refer to decisions from other jurisdictions dealing with the same point. In the British case of Cheng v Governor of Pentonville Prison,7 Lord Simon cited with approval the Italian decision of In re Pavelic and Kwaternik,8 the Ghanaian case of The State v Schumann9 makes reference to the Swiss judgment in Noblot, 10 while the Australian decision of Riley v The Commonwealth11 draws on British, U.S. and Irish authorities. In the 1996 case of T v Immigration Ofﬁcer,12 the House of Lords drew on U.S. and Swiss jurisprudence There is a sense in which the municipal application of extradition laws is itself international. Thus, there is, in effect, an international law of extradition, even if it is applied by municipal courts. On another level though, extradition is but a part of the picture because it is only a means of acquiring jurisdiction over an offender; other aspects of domestic criminal law and procedure need to be in place if these offenders are to punished for their

5

6 7 8 9 10 11 12

See SHEARER, EXTRADITION IN INTERNATIONAL LAW at p. 18 (1971); hereinafter, SHEARER. It is actually a two-way process, with treaties being drafted with the domestic legislation in mind. [1973] AC 931 per Lord Simon at 947 and esp. at 956 et seq. [1933–34] Ann. Dig. 372; Foro Italiano, 1935, Part II, col. 20. 39 INT’L L REP. 433 (1966). [1927–28] Ann. Dig. 350, referred to at 447 of the Schumann case, supra n9. (1985) 159 CLR 1 (H.C.). T v Immigration Ofﬁcer, [1996] 2 All ER 865.

International Criminals and the Legal Process

5

wrongdoing. Rather than being seen as a mere adjunct to international criminal law, it can be seen as part of a scheme for mutual assistance between separate States in enforcing domestic criminal matters. A 1990 British House of Commons report on policing in the European Community13 gives the following example. . . . [A] lorry travelling from Turkey to Norway will pass in and out of [member States of the European Community]. Whether it is carrying heroin or is simply overloaded or exceeding tachograph limits is a matter of concern to a variety of police forces and jurisdictions which may need to co-operate. These countries will also need to ensure that they have legislative and criminal justice systems which ensure that those who break the law cannot use frontiers as a means of escaping justice.

Extradition is one element in those systems designed to stop fugitives using borders as a means of escaping justice. Thus, extradition has a role to play in enforcing international criminal law and in assisting States to prosecute violations of purely domestic legislation. Since, however, even now most international criminal law, that is, genocide, war crimes and crimes against humanity, is still prosecuted by individual States rather than some supra-national criminal court, a situation that will undoubtedly pertain for the foreseeable future,14 these two facets are not mutually exclusive. When one takes into account the fact that international crimes form a very small part of crimes sans frontières, then, even with the International Criminal Court, rendition to some other State will remain the norm.

1.2 International criminal law Extradition law, however, is but a part of international criminal law, impinging upon it in procedural terms at least. It is now possible to speak of international criminal law in terms of crimes established at the international level and prosecutable at that level, too. The 1948 Genocide Convention15 provided in Article VI for trial before an international penal tribunal or before the domestic courts of the State where the crime took place, but no such international tribunal was established; other crimes promulgated at the international level are dependent on domestic prosecution. As such, it used to be arguable that ‘international criminal law’ was simply international criminal procedure, typically extradition, to allow for the domestic

13

14

15

HOME AFFAIRS SELECT COMMITTEE, SEVENTH REPORT, PRACTICAL POLICE COOPERATION IN THE EUROPEAN COMMUNITY, vol. 1, para. 46, (2 Volumes), 20 JULY 1990, HCP 363 (1989–90); hereinafter, HCP-I or HCP-II. Article 5 of the Rome Statute, supra n2, talks of it prosecuting “the most serious crimes”, not every person responsible for war crimes or crimes against humanity. See also, Warbrick, International Criminal Courts, 44 INT’L & COMP. LQ 466 (1995); Graefrath, Universal Criminal Jurisdiction and an International Criminal Court, 1 EJIL 67 (1990). 78 UNTS 277 (1951). The term genocide was coined by Lemkin in his 1944 book Axis Rule in Occupied Europe.

6

Chapter 1

prosecution of domestic crimes that emanated from international treaties or customary international law. The establishment of the International Criminal Court, though, has now provided a generic international criminal tribunal for the prosecution of certain international crimes. Unfortunately, its mere establishment will not completely resolve the problem of what constitutes an international crime. The attempt to deﬁne the scope and the jurisdiction of the International Criminal Tribunal for the former Yugoslavia, dealing only with the conﬁned sphere of crimes committed during the conﬂict in the former Yugoslavia, has led to much ink being spilt.16 The 1991 Draft Code of Crimes against the Peace and Security of Mankind17 proved highly controversial, and in 1995 the International Law Commission could only recommend genocide, aggression, crimes against humanity and war crimes to the Drafting Committee.18 Such difﬁculty in obtaining agreement as to what might be an international crime was repeated in the drafting of the Statute of the International Criminal Court. In the end, Article 5 of the Rome Statute19 included aggression, genocide, war crimes and crimes against humanity, but Article 5.2 provides that jurisdiction will only be exercised over aggression once the Article 123 Review Conference devises a deﬁnition in line with the Charter of the United Nations. While there may not be a treaty deﬁning all those crimes that might in some way be deﬁned as international, it was clearly accepted before 1998 that the list of crimes that fell within international criminal law was much broader than those set out in Article 5 of the ICC Statute. In seeking to explain what constitutes international criminal law, one’s ﬁrst instinct is to look at the issue as one would look at municipal law, especially as, according to Article 38 of the Statute of the International Court of Justice, one of the ‘sources’ of international law is described as the general principles of law recognised by civilised nations. Presumably, therefore, if one were to ﬁnd that a particular act was regarded as a criminal offence by all or the overwhelming majority of States, it might be presumed that such an act was contrary to the general principles of criminal law recognised by civilised nations, and therefore contrary to international law . . . [The] corpus of international criminal law [is found] in the unwritten customary law accepted by States, the general principles of criminal law recognised by nations and the treaties which declare this or that particular line of conduct to be criminal.20 16

17 18

19 20

Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No. IT-94-1-AR72 (1995). See also, Meron, The International Criminalization of Internal Atrocities, 89 AM.J INT’L L 554 (1995); WAR CRIMES LAW COMES OF AGE (1998). [1991] 2 Yb Int’l L Comm. 198, UN Doc.A/CN.4/SER.A/1991/Add.1. UN Doc.A/50/10 at 70 (1995). See Rosenstock, The Forty-seventh Session of the International Law Commission, 90 AM.J INT’L L 106 at p. 109 (1996). And see A/51/332, 1996, which deﬁned aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel and war crimes. Supra n2. Green, International Crimes and the Legal Process, 29 INT’L & COMP LQ 567 at pp. 568–69 (1980).

International Criminals and the Legal Process

7

This particularly wide deﬁnition of international criminal law should be contrasted with that given by Bassiouni.21 The very nature of all these acts and their deﬁnition in the applicable international instruments and under customary international law indicates that there are no common or speciﬁc doctrinal foundations that constitute the legal basis for including a given act in the category of international crimes. . . . Nevertheless, . . . there are two alternative requirements for proscribed conduct; namely, it must contain either an international or transnational element in order for it to be included in the category of international crimes. In other words, the conduct in question must either rise to the level where it constitutes an offence against the world community delicto jus gentium or the commission of the act must affect the interests of more than one State.

Bassiouni went on to point out that there was at that time no scheme for the international enforcement of international criminal law and that the then system relied on the jurisdictional competence of domestic courts and the willingness of States either to prosecute or extradite; the position now is that one can add that in certain cases there is an international enforcement mechanism, but one is still reliant on states to surrender the accused thereto. Therefore, extradition or some other lawful form of rendition is part of the procedural framework behind the burgeoning subject of international criminal law.

1.3 Extra-territorial jurisdiction, international crimes and transnational fugitive offenders Questions of extraterritorial jurisdiction, especially universal jurisdiction, raise issues about the competence of the requesting State on the one hand and, ultimately, about the need for extradition at all if the State holding the fugitive has the right to prosecute under the guise of an extended form of jurisdictional competence. On the other hand, excessive claims to extraterritorial jurisdiction can be in breach of international law.22

21

22

See The Penal Characteristics of Conventional International Criminal Law, 15 CASE W RES.J INT’L L 27 at pp. 28 et seq.; hereinafter, Penal Characteristics. See also, by the same author, Introduction: A Policy-Oriented Inquiry into the Different Forms and Manifestations of ‘International Terrorism’ in BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM: U.S. PROCEDURAL ASPECTS, at p. xv (1988); hereinafter, LEGAL RESPONSES. See also, Bohlander and Findlay, The Use of Domestic Sources as a Basis for International Criminal Law Principles, [2002] THE GLOBAL COMMUNITY: YB OF INT’L LAW AND JURISPRUDENCE 3. See Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic Of The Congo v. Belgium), [2002] ICJ Rep, General List No. 121, 14 February 2002.

8

Chapter 1

1.4 Other forms of rendition Finally, it will be seen that because of some of the procedural failings of the present extradition arrangements, considered by some to be out-of-date, that alternative, less formal means of rendition have been employed, usually to permit the prosecution of those charged with ‘international crimes’.

1.5 Human rights and rendition Away from criminal law per se, extradition law has another function. So far it has been seen as a scheme whereby States assist each other in criminal matters, but it is also important in protecting the fugitive’s rights.23 Part of the problem with extradition is in trying to achieve the correct balance between allowing the free ﬂow of fugitive criminals to States where they may be prosecuted for their crimes, and in safeguarding the fugitive from oppressive punishment or from persecution on account of his personal characteristics, beliefs or opinions. Even where the system is being properly used to effect the return of a fugitive criminal, it is still guaranteeing that fugitive’s rights because extradition is the speciﬁc means designed by States for that purpose. The establishment of the international criminal tribunals for the former Yugoslavia and Rwanda24 was designed in part to ensure an impartial trial after inter-ethnic conﬂict; the International Criminal Court can provide similar guarantees of impartiality because it can assert priority over States where they are “unable genuinely” to carry out the investigation or prosecution25 – ﬂagrant denial of fair trail would trigger that inability. Surrender to international or internationalized tribunals,26 like extradition law, can be seen to provide human rights guarantees in the response to international crime. Alternative methods of obtaining jurisdiction, such as exclusion, deportation or abduction, lack the built-in safe23

24

25 26

See Lord Grifﬁths in R v Horseferry Road Magistrates Court, ex parte Bennett [1993] 3 All ER 138, [1993] 3 WLR 90 at 104H, namely: Extradition procedures are designed not only to ensure that criminals are returned from one country to another, but also to protect the rights of those who are accused of crimes by the requesting country. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add. 1 (1993), adopted by Security Council on 25 May 1993, UNSC Res. 827 (1993) and may be found in 32 ILM 1192 (1993); the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR), is to be found in UNSC Res. 935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994). Supra n2, Article 17. See ROMANO, NOLLKAEMPFER AND KLEFFNER, INTERNATIONALIZED CRIMINAL COURTS (2004).

International Criminals and the Legal Process

9

guards of extradition/surrender arrangements, thereby allowing the fugitive’s rights to be ignored. Extradition and surrender are one element in the international protection of human rights.27 The law pertaining to extradition and surrender have dual international and domestic facets which are relevant with respect to several areas of international criminal law and procedure, and of the international protection of human rights.

2. The Problem Despite the efforts of many academic commentators over the years, there is still no universally recognised, comprehensive system of international criminal law. The two ad hoc tribunals were both geographically and temporally limited;28 the International Criminal Court can only deal with cases arising from events after 1 July 2002 and in relation to genocide, crimes against humanity and war crimes.29 Other hybrid or internationalized tribunals are designed to respond to particular situations. Nor is there a comprehensive Convention on International Criminal Law for states party to implement in their domestic legal systems. Whether an offence qualiﬁes as an international crime is a matter of experience and empirical study.30 Certain unlawful acts have an international aspect and others are so reprehensible that States recognise a right to prosecute the perpetrator wherever he may be found. However, there are no hard and fast rules that are always followed by all States, and the number of infractions to which this ‘international’ status is attributed is very few.31 The Draft Code of Crimes Against the Peace and Security of Mankind32 included aggression, genocide, crimes against humanity and war crimes, providing an indicative list, but work on it appears dormant at present. Moreover, most crimes only give rise to domestic jurisdiction.

27

28 29 30 31

32

Conversely, when returning an offender to face legitimate prosecution for his misdeeds, it is part of the law of human responsibilities. See BAILEY, HUMAN RIGHTS AND RESPONSIBILITIES IN BRITAIN AND IRELAND: A CHRISTIAN PERSPECTIVE, esp. at pp. 30 et seq. (1988). Impunity breeds contempt for the law, particularly relevant where the fugitive offender is accused of war crimes or gross human rights violations – see, Crelinsten, After the Fall: Prosecuting Perpetrators of Gross Human Rights Violations, 5.1 PIOOM Newsletter 4 (1993); Hampson, Impunity and Accountability, in SIEDER (ed.), IMPUNITY IN LATIN AMERICA, at p. 7 (1995); and the Applicants’ Memorials in Akdivar and others v Turkey, Case No. 99/1995/605/693, Zeki Aksoy v Turkey, Case No. 100/1995/606/694, Sukran Aydin v Turkey, Case No. 57/1996/676/866, Mentes and others v Turkey, Case No. 58/1996/677/867. Supra n24, Article 1 in both cases. See Articles 126 and 5, respectively, of the Rome Statute, supra n2. See Bassiouni, Penal Characteristics, supra n21, at p. 28. See Bassiouni, Penal Characteristics, at pp. 27–28 and the same author, INTERNATIONAL LAW: A DRAFT INTERNATIONAL CRIMINAL CODE at pp. 3–19 (1980), both supra n21. See also, Green, supra n20, at pp. 573 & 575 et seq. Supra nn17 and 18.

10

Chapter 1

Predominantly, criminal acts are punished by domestic courts exercising municipal legislation. Problems arise where the accused has ﬂed the jurisdiction. In such cases, he must be returned to the State which is competent to prosecute: extradition is one method of returning fugitives. Unfortunately, there is much about extradition which is not generally known to the practitioners on the one hand and to the extradition magistrates on the other, not to speak of the general public. It is a proceeding beset by various problems, both procedural and substantive.33

The following hypothetical case is meant to highlight most of the issues upon which extradition impinges or which affect extradition law or procedure. Although it is focused on the United Kingdom, it is relevant to most States that have general extradition arrangements as well as more specialised schemes with certain other States, usually geographic or geopolitical neighbours. Sven is a Swedish national. In Dublin, in the Republic of Ireland, he is alleged to have used explosives to rob a bank. With the funds raised from the robbery, he ﬂed to New York, U.S.A., where he committed ﬁnancial crimes having cross-frontier aspects which seriously damaged the economic interests of France. To avoid arrest, he hijacked a plane and ﬂew to Toronto, Canada. Shooting several security guards and Turkish tourists at the airport, he boarded a plane bound for London. At Heathrow Airport he was arrested.

Admittedly, it would be unlikely for any one individual to be liable for so many crimes in so many separate States, but in any year several individuals could arrive in another State who between them will have committed a similar set of offences. In Sven’s case, several States could request his return from the United Kingdom, which would be the ‘requested State’34 in this instance. Taking the ‘requesting States’ one by one, the Republic of Ireland would request Sven’s surrender from the United Kingdom under specialised legislation, Part 1 of the Extradition Act 2003,35

33

34

35

Comment by the late Alona E Evans, presiding in an A.S.I.L. panel on International Procedures for the Apprehension and Rendition of Fugitive Offenders, [1980] A.S.I.L. PROC.274, 74th Annual Meeting. The term ‘asylum State’ is preferable to the more usual ‘requested State’, because ‘asylum’ suggests a more active role than the passive idea behind ‘requested’. The State where the fugitive is found must take several important decisions with respect to the fugitive’s surrender which involve the exercise of judicial and political discretions – extradition policies are actively put into effect by ‘requested’ States. Despite these misgivings, to use asylum State would be to court confusion with the concept of asylum associated with refugee law; thus, the term requested State is, with some reluctance, used throughout this book. See SI 2003 No. 3333 and SI 2004 No. 1898. See also, the European Arrest Warrant – Council of the European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), OJ 2002 No.L190/1. Now treated like other EU member States, extradition with the Republic of Ireland had been based

International Criminals and the Legal Process

11

which provides for a simpler form of extradition with other European Union member States.36 Furthermore, going back to Sven’s case, since the offence included explosives, the United Kingdom may exercise extraterritorial jurisdiction under the Criminal Jurisdiction Act 1975 and try Sven in London for the offence committed in Dublin. This power is special to the Anglo-Irish situation under the 1975 Act, but many anti-terrorist conventions contain similar provisions requiring the requested State to extradite or prosecute. The United States would request Sven under British domestic legislation which enables the Anglo-U.S. Extradition Treaty. Extradition is usually effected by way of bilateral treaties, most of which, unfortunately, were concluded around the turn of the century. In treaties where the extraditable crimes are listed, their age can create problems if the offence for which the fugitive is being requested was not envisaged one hundred years ago. Drug related crimes present difﬁculties in this respect, although complex cross-frontier frauds, like the one set out in the example, can prove complicated as well. Since the ﬁnancial crimes have serious consequences for France, Sven may be requested by the French authorities, too. France exercises jurisdiction over offences which seriously affect the vital interests of the State.37 Whether the protective principle of extraterritorial jurisdiction, as it is known, covers the economic interests of the State is not clear. Even if it were found that its ambit was that wide, the double criminality requirement of extradition law may mean that a request to the British authorities, who do not recognise the protective principle, might fail.38 The hijack could also be prosecuted by the U.S.A., but since the plane landed in Canada, it too has jurisdiction. Further, under the multilateral Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970 and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,39 the United Kingdom could also try Sven because he has been found in the United

36

37

38 39

on backed warrants of arrest since 1965 – the Backing of Warrants (Republic of Ireland) Act, 1965. Like many other contiguous or proximate States with close historical ties (see Chapter 2 below), the United Kingdom and the Republic of Ireland based their simpliﬁed extradition on reciprocal legislation rather than a treaty – it is now part of an EU-wide arrangement. Other examples would be the Australian and New Zealand system (see the Australian Extradition Act 1988, Part III) and the Nordic Union scheme (Established prior to the Union, the extradition system based on reciprocal legislation is still in force between Denmark, Finland, Iceland, Norway and Sweden: see Chapter Two); in other cases, the system is still treaty based, although the extradition procedures are just as simpliﬁed (See, for example, the Benelux Accord of 27 June 1962 and 1974 Protocol (see SHEARER, supra n5, at pp. 53 et seq.) between Belgium, Luxembourg and the Netherlands, enhanced by the Schengen Accord of 19 June 1990). See In re Urios, [1919–22] Ann. Dig. 107; (1920) 47 Clunet 195; see also DONNEDIEU DE VABRES, LES PRINCIPES MODERNES DU DROIT INTERNATIONAL PENAL pp. 95 et seq. (1928): Art. 694 Code de Procédure Pénal. For a detailed examination of the interplay between questions of jurisdiction and extradition law, see Chapter Three, below. On the question of jurisdiction and double criminality, see Chapter Three, below. 10 INT.LEG.MAT.133 (1971) and 10 INT.LEG.MAT.1151 (1971), respectively.

12

Chapter 1

Kingdom; the United Kingdom would again be exercising extraterritorial jurisdiction, required under the Hague and Montreal Conventions. Canada would request Sven for shooting the security guards under the non-treaty based London Scheme for Extradition within the Commonwealth.40 This Scheme, promulgated in 1966 but amended in 1990 and then again in 2002, relies on legislation in the member States of the Commonwealth to put it into effect. Nevertheless, it is very much akin to a multilateral convention, although such agreements are usually only concluded among geographic and geopolitical neighbours – the ideological stances of some member States are even further apart than the physical distances that separate them and so the Commonwealth Scheme is somewhat special. The Turkish government might also put in a request on the grounds that Sven killed some of its nationals. Turkey exercises a form of extraterritorial jurisdiction known as the passive personality principle, that is, it claims to be competent to prosecute where the victims of the crime are Turkish nationals.41 Once again, the United Kingdom does not recognise this form of jurisdiction, raising the question of the interplay of extraterritorial jurisdiction and the double criminality requirement. Finally, Sweden, too, could request Sven’s return for Sweden exercises criminal jurisdiction over all of its nationals through the so-called active personality principle42 for crimes committed anywhere in the world. Whether the United Kingdom would regard the request as well-founded, given that it only recognises such jurisdiction in the case of certain offences, is once more open to question. Having decided on which of the claims for Sven it will recognise, the United Kingdom would then have to decide which one, if any, it was going to grant, and whether this surrender would be before or after any trial and punishment in the United Kingdom for those offences for which it can claim jurisdiction itself. The foregoing brief analysis of the hypothetical case set out above should have brought to light some of the issues applicable to the study of extradition. Those matters and others will be the object of discussion in the following pages.

3. Policy As has already been stated, the law relating to fugitive offenders is not a single, selfcontained system; extradition law impinges upon, and is itself impinged upon by, other ﬁelds of law. Issues of jurisdiction and questions concerning other methods of rendition overlap. Moreover, the politics of international relations also plays a

40

41 42

Considered in depth in Chapter Two; originally known as the Commonwealth Scheme for the Rendition of Fugitive Offenders. See, The Lotus Case, (France v Turkey), (1927), PCIJ Reports, Series A, No. 10. Public Prosecutor v Antoni, 32 INT’L L REP.140 (Swed.Sup.Ct. 1960).

International Criminals and the Legal Process

13

part in forming the theory and practice of dealing with fugitive offenders, especially with regard to the ever pertinent topic of terrorism. Looking at the principles of extradition common to most international arrangements, the object is to present a more streamlined and coherent procedure that is acceptable to States and which, at the same time, protects fugitive’s human rights. This approach is premised on the assumption that extradition, in one form or another, will continue to be the recommended method of returning a fugitive to the courts of a country with jurisdiction to deal with him, and that other, less formal methods are inferior in achieving that end and in protecting the fugitive. The International Criminal Court and other international or internationalized courts tend only to deal with the most serious offenders, so most people violating international criminal law will be prosecuted before a domestic court; as such, it may be necessary to use extradition law to bring them before a competent court. Therefore, the overall objective is to design an efﬁcient extradition law to expedite the prosecution of fugitives, given certain protections which are necessary when a person is threatened with being removed from the safety of a State where he has committed no crime. However, there are alternatives to extradition which cannot be ignored and in some cases they may well be a satisfactory supplement to the extradition processes, even if not a desired one. Since extradition law is the recognised means by which fugitive offenders are to be brought before a court for prosecution, the policy of States towards the extradition of fugitive offenders is the principal focus of this book, although that must be read to include surrender to international courts. Primarily, that above objective necessitates a consideration of the present law and practice and the difﬁculties which have arisen therefrom. Generally, if one is seeking to ensure the prosecution of fugitives, then the extradition law must be made as simple as possible with very few anomalies. The only controlling feature must be that the liberty of the alleged fugitive offender should be protected until the authorities of the requested State, are satisﬁed that he should stand trial. If procedural amendments alone could correct the failings of the present extradition law, the task would be much simpler. Unfortunately, implicit in every extradition request there is an element of foreign policy43 – as has been pointed out, extradition has domestic and international facets. More often than not, foreign policy may be readily dismissed early in the proceedings, but occasionally it may play a considerable part in the ultimate decision. Recognising this, it is then necessary to 43

There is, of course, the initial decision as to whether to enter into extradition relations with another State. However, even where an extradition arrangement exists, other international or domestic issues might apply – see, for example, Zimbabwe’s accusation that the United Kingdom was not co-operating because it harboured economic criminals – The Guardian p. 15, 15 SEP 2004; and Colombia’s refusal of a U.S. request with respect to drug related crimes for the head of the AUC, a rebel group, on condition that he .continued to pursue the disarmament process – The Guardian p. 17, 18 DEC 2004.

14

Chapter 1

consider whether extradition should be, or can be, the sole method of ensuring the fugitive’s prosecution. Extradition may be the established method of rendition, but it is by no means a convenient method, or, indeed, a popular method. In a recent study of 231 instances of rendition of persons charged with international terrorist offences, it was found that only 6 out of 87 extradition requests were granted; on the other hand, 145 terrorists were expelled by 28 States.44

Given extradition is only possible where an international arrangement exists between the requested and requesting States, whether permanent or ad hoc in nature, and that many States do not have any such arrangements, then fugitives will sometimes be returned by other means. No problems arise as long as these other options are considered to be merely alternatives in extremis – in terms of international public order, overall efﬁciency and human rights, extradition must always be the primary method. However, while extradition may be the principal means of rendition, it is only one method by which States may provide mutual assistance in matters of criminal rendition. Thus, it is appropriate to study and compare the other means, which range from the manifest illegality of abduction, through collusive deportation and simple return (that is, where one State hands over a fugitive to another without recourse to any ofﬁcially recognised or organised procedure), to extraterritorial jurisdiction and international criminal courts. The overriding aim should be to prosecute fugitive offenders whenever a crime has been committed and, while extradition is limited, the use of other means will continue and cannot be ignored.

4. Problems of Circumscription and Deﬁnition Responding to international crime involves dealing with various types of crime and offender. It should self-evidently be read to encompass those whose crimes are justiciable before an international criminal tribunal. It also includes someone who commits a crime or has been convicted of a crime in one State and is now to be found in a third State. More debateably, it could include the offender whose crime has an effect in one State, despite the fact he never left a third State. As such, responding to international crime may involve surrender to some international criminal tribunal, or to the courts of another State with jurisdiction to prosecute, or even prosecution in the State where the transnational fugitive offender is found under principles of universal or representational jurisdiction.45 44

45

Evans, supra n33 at 276. Cf. The remarks of Charles Gordon on the same panel (at pp. 284–86) would indicate that deportation or expulsion may not be as efﬁcient a method as Evans would suggest. See Chapter Three, below.

International Criminals and the Legal Process

15

No-one would deny that extradition should be placed within the scope of public international law,46 pertaining, as it does, to both relations between States and the status of the individual.47 With regard to relations between States, at one level the treaties and other international agreements may be seen in contractual terms, regulating the transfer of fugitive offenders. Without this ‘contract’, there is no obligation to extradite.48 However, without denying the necessity of some international arrangement, there is a growing and developing view that, for certain crimes at least, the requested State’s domestic court is simply carrying out its part in an international criminal legal order which requires the punishment of criminals. There is certainly no rule of customary international law that fugitives in general should be extradited or prosecuted, but several anti-terrorist conventions make this demand and academic writers are beginning to discern an obligation not to let the individual remain unpunished – a new norm of international criminal law may be developing.49 The extraditing state also has the right, in the cases where extradition for whatever reason is not possible, although according to the nature of the offence it would be permissible, to carry out a prosecution and impose punishment, instead of such action being taken by the requesting state. As regards the individual, the practice and procedure of extradition in the domestic courts can be seen in terms of mutual assistance by States in criminal matters; the fugitive is the object of the system. Yet, the process can also be seen as conﬁrming the individual’s freedom in the requested State. More often than not,

46

47

48

49

Most writers on private international law speciﬁcally exclude all matters of criminal law in the ﬁrst few pages of their works. CHESHIRE & NORTH, PRIVATE INTERNATIONAL LAW, (13th ed., 1999). Huntington v Attrill, [1893] AC 150. LAUTERPACHT, SURVEY OF INTERNATIONAL LAW IN RELATION TO WORK OF CODIFICATION OF THE INTERNATIONAL LAW COMMISSION, paras. 27–30, U.N.Doc.A/CN.4/1/REV.1 (1949). Reproduced in LAUTERPACHT, INTERNATIONAL LAW, (being the collected papers of Hersch Lauterpacht) vol. 1, p. 445 (1970). Anglo-American jurisprudence is to the effect that extradition can normally only occur when there is a treaty. E.g. R v Governor of Brixton Prison, ex p. Soblen, [1962] 3 All ER 641 at 659; Holmes v Jennison, 14 Pet. 540 (1840) and Valentine v U.S. ex rel. Neidecker, 299 US 5 at 9 (1936). Civil law states are usually not prohibited from extraditing in the absence of a formal arrangement, but there would be no obligation; see Chapter Two, below. See The Universal Jurisdiction (Austria) Case, 28 INT’L L REP. 341 at 342 (1958). See also, Bassiouni, Penal Characteristics, supra n21. MURPHY, PUNISHING INTERNATIONAL TERRORISTS, pp. 129–35, (1985); BASSIOUNI & WISE, AUT DEDERE, AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW, (1995); POLITI & NESI, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A CHALLENGE TO IMPUNITY (2001); Joyner, Redressing Impunity for Human Rights Violations: The Universal Declaration and the Search for Accountability, 26 DENV. J. INT’L L. & POL’Y 591 (1998); Mugwanya, Expunging the Ghost of Impunity for Severe and Gross Violations of Human Rights and the Commission of Delicti Jus Gentium: A Case for the Domestication of International Criminal Law and the Establishment of a Strong Permanent International Criminal Court, 8 MSUDCL J. INT’L L 701 (1999); Seagrave, Conﬂict in Colombia: How Can Rebel Forces, Paramilitary Groups, Drug Trafﬁckers, and Government Forces Be Held Liable for Human Rights Violations in a Country Where Impunity Reigns Supreme?, 25 NOVA L REV.525 (2001).

16

Chapter 1

extradition is merely a process by which fugitive offenders are returned to the requesting State, but, in rare cases, the process is a facet of international human rights law, protecting individuals from unfair trials and practices. All in all, extradition is part of public international law, even though it operates predominantly in the domestic courts. The early commentators all saw extradition in terms of mutual assistance in criminal matters. For J.B. Moore, extradition is the act by which one nation delivers up an individual, accused or convicted of an offence outside of its own territory, to another nation which demands him and which is competent to try and punish him.50

Even in modern times, this view was prevalent. Extradition is the return of a fugitive criminal from the country where he is found to the country where he is accused of or has been convicted of an offence. It is an arrangement designed to prevent criminals from escaping from justice by crossing national frontiers.51

While accepting the above deﬁnitions, a rider must be added to the effect that extradition is permeated with special protections, unknown in municipal trials and, therefore, in part, a protection for the individual. Created mainly in nineteenth century Europe, there is an ambience of that era’s liberalism which, on one interpretation, was designed to protect political activism in autocratic regimes. Thus, today the fugitive offender may plead his offence is political or that he may suffer prejudice due to his race, nationality, religion or political opinions.52 Extradition is part of public international law, but it is a discrete system within it and it has developed many features of its own through its implementation before domestic courts. Deportation, similarly, operates under domestic law, but with international constraints, while abduction violates State sovereignty but may provide domestic courts with jurisdiction. An International Criminal Court has a more purely international character, but the politics of its creation and operation involve balancing

50

51

52

EXTRADITION AND INTERSTATE RENDITION, vol. 1, p. 3, (1891) translating BILLOT, TRAITE DE L’EXTRADITION, p. 1, (1874). See also Terlinden v Ames, 184 US 270 (1902). A REVIEW OF THE LAW AND PRACTICE OF EXTRADITION IN THE UNITED KINGDOM, para. 1.1. REPORT OF AN INTERDEPARTMENTAL WORKING PARTY, MAY 1982, CRIMINAL JUSTICE DEPARTMENT, HOME OFFICE; hereinafter, 1982 REVIEW. See para. 7 of the Explanatory Note to the Extradition Act 2003, available from http:// www.hmso.gov.uk. Extradition is an important tool in dealing with international crime: no one should be able to escape justice by simply crossing a border. The law should provide a quick and effective framework to extradite a person to the country where he is accused or has been convicted of a serious crime, provided that this does not breach his fundamental human rights. (emphasis added).

International Criminals and the Legal Process

17

domestic and international interests.53 Responding to international crime has never been so much at the forefront for the international community. The challenge for lawyers is to produce a regulatory regime that is effective and fair.

5. History of Extradition Fugitive offenders ought to be returned by extradition and the practice has a long history which has been extensively researched.54 While the past one hundred and ﬁfty years of practice and comment, of statute and case law is distinct and sufﬁcient, an understanding of the historical development of extradition law provides insights into some of the present problems. Writers agree that the ﬁrst treaty dealing with extradition was concluded in 1280 BC by Rameses II of Egypt and the Hittite prince Hattushilish III.55 This treaty applied to the surrender of ‘great men’, which has been taken to refer to political offenders and not common criminals; extradition treaties today, on the other hand, speciﬁcally exempt political offenders from surrender. Nor was this agreement an isolated instance, for, as Blakesley has shown,56 extradition was in use in 53

54

55 56

See the comments of Belarus in COMMENTS RECEIVED PURSUANT TO PARAGRAPH 4 OF GENERAL ASSEMBLY RESOLUTION 49/53 ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT, A/AC.244/1, AD HOC COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 3 – 13 April 1995. “4. The revised draft includes a preamble, the contents of which demonstrate that the debate about the method of establishing the court has resulted in the choice of the best method, namely the conclusion of an international treaty. While Belarus supports this approach on the whole, it wishes to draw attention to the contents of the preamble, and particularly to the ﬁnal provision thereof. The preamble should naturally reﬂect the close interconnection between the international criminal court and national judicial organs. But, at the same time, the complementarity and interaction of international and national jurisdictions should be stressed. The court has its own function, namely to conduct proceedings in respect of international crimes, and in so far as this function is concerned it is on an equal footing with national jurisdictions.” Cf. The comments of the International Criminal Tribunal for the Former Yugoslavia. “(c) State sovereignty versus international justice 8. The draft statute presents an underlying tension between State sovereignty and the demands of international justice (“nationalism” versus “internationalism”), in which State sovereignty seems in several instances, to have prevailed. This tension may also be described as a contrast between consensualism and community interests. The Draft statute, it appears, is trying to advance community interests, i.e., international criminal justice, by the method of consensualism, i.e., trying to obtain as much consent to the machinery of criminal justice as possible. In this respect, there is an inherent, albeit necessary, contradiction in its logic.” E.g. SHEARER, supra n5, pp. 5–19, (1971). O’Higgins, The History of Extradition in British Practice, 13 IND.YB.INT’LAFF.78 (1964). Blakesley, The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. INT’L & COMP. LJ 39 (1981). Blakesley actually considers the whole history of extradition, not just French and American, although his review does skip from pre-Christian extradition arrangements to those of mediæval times; hereinafter, Blakesley, Antiquity. SHEARER, supra n5, at p. 5, citing Langdon and Gardner in 6 J EGYPTIAN ARCH.179 (1920). Antiquity, supra n54, at pp. 41 et seq. The issue provoked much debate amongst French lawyers at the turn of the century.

18

Chapter 1

pre-Christian times, even if the term itself was unknown and with very few of today’s procedures being incorporated – the ‘diplomatic request’ was usually accompanied by a threat of war if the fugitive were not to be surrendered. Shortly after the agreement between the Egyptians and the Hittites, one ﬁnds extradition taking place, if rarely, in ancient Israel, and the Hindu Code of Manu also made provision therefor.57 Moreover, the whole tenor of these procedures indicates the system was designed to return common criminals as well as ‘great men’. The Romans also practised extradition, at least up to about 100 BC.58 Thus, extradition was known in ancient times, although its practice would bear little relation to the system in operation today. Between the end of the Roman era in Europe and the Mediæval period, there is little available evidence one way or the other about the practice of extradition; nevertheless, a treaty concluded in the tenth century by the rulers at Byzantium and the Princes of Kiev did allow for it.59 Probably the ﬁrst treaty that dealt with extradition in western Europe was made in 1174 between England and Scotland. Like most extradition treaties of the premodern period, extradition was but one issue in a comprehensive inter-State agreement. In continental Europe, France was providing for the extradition of common criminals as early as 1376,60 although, even before then, it had concluded a treaty with England in 1303 that allowed for the handing over of political opponents of the ruler of the requesting State. Previous writers have said that English extradition up to 1794 was generally exercised on an ad hoc basis, for there were very few treaties,61 and that it was only used to return political offenders.62 However, O’Higgins63 has shown that many treaties contained provisions dealing with extradition during the middle ages and that all types of offender were returned, usually only if such a treaty provision existed; the Anglo-Dutch treaty of 1662,64 whilst primarily designed to obtain a return of political enemies also allowed for the return of any other offender requested. Whilst O’Higgins’ research cannot be controverted, it would be rare for a common criminal to ﬂee abroad from the United

57

58

59

60 61 62

63 64

Blakesley, Antiquity, supra n54, at p. 47 – see for example, the Old Testament, Judges, Ch. 20, vv. 12,13. See also SINHA, ASYLUM AND INTERNATIONAL LAW, at p. 6 (1971). See SIR EDWARD CLARKE, A TREATISE UPON THE LAW OF EXTRADITION, pp. 16–29 (2nd ed., 1874); see also Buser, The Jaffe Case and the use of International Kidnapping as an Alternative to Extradition, 14 GA.J INT’L & COMP. L 357 at p. 358. Schmid, Extradition and International Judicial and Administrative Assistance in Penal Matters in East European States, 34 LAW IN E.EUROPE 167 at p. 174 (1988). Blakesley, Antiquity, supra n54, at p. 48, with respect to the treaty with Savoy. CLARK, EXTRADITION, pp. 18–22 (4th ed., 1923). See the Anglo-French and Anglo-Dutch treaties of 1661 and 1662, respectively, referred to in Blakesley, Antiquity, supra n54, at p. 49. O’Higgins, The History of Extradition in British Practice, 13 IND.YB.INT’L AFF. 78 (1964). Supra n62. NB. The DRC-Rwanda peace treaty of 2002 provided for the surrender of genocidaires to the ICTR in Arusha or to Kigali – The Guardian p. 13, 31 July 2002.

International Criminals and the Legal Process

19

Kingdom in the ﬁrst place and it cannot be doubted that the system was in reality a means by which the State could expel those people who were not conducive to the public good. The process then in operation would bear no direct relationship to today’s law and practice. On the other hand, with regard to continental European treaties, where ﬂight across a border was easy, the position seems to have been closer to present practice, as the Franco-Savoyan treaty of 1376, referred to above, illustrates. The present system of extradition started to evolve during the eighteenth century in Europe between contiguous States. Since the United Kingdom is an island, it was insulated from the rest of the Continent’s ﬂeeing fugitives and so did not enter into many extradition treaties at that time. By comparison, France led the way in concluding extradition treaties;65 it was truly the founder of modern extradition practice. According to de Martens,66 almost one hundred treaties pertaining to extradition were made during the eighteenth and early part of the nineteenth centuries. As might be imagined, these agreements were usually between contiguous States – the fugitive would not ﬂee far from home. The ease of movement around the world available today obviously did not exist, but, as others have noted too, this was coupled with the fact that people would ordinarily remain in the community into which they were born all their lives and the arrival of a stranger would not necessarily be welcome. Even if he had committed a crime, the offender would not readily ﬂee because of the loss of livelihood and community that accompanied his ﬂight. Nevertheless, extradition treaties proved increasingly necessary during the eighteenth century as industrialization led to increased movement of the population in general.67 The rise of extradition as the appropriate means of dealing with fugitive offenders probably stems from two movements also arising in that century. The ﬁrst is the rise of the nation State and the concept of co-equal sovereignty in Europe.68 To assert independence, authority and equality in all matters, the emerging States promulgated treaties on various matters – extradition was part of this. The other movement, was the development of a nascent law of human rights.69 The emerging States tended to have broken away from the autocratic empires in an attempt to assert individual freedoms: extradition treaties, by providing a system that

65 66

67 68

69

See SHEARER, supra n5, at pp. 8–11. RECUEIL DE TRAITES, 7 vols., 1791–1826; SUPPLEMENTS AU RECUEIL DES PRINCIPAUX TRAITES, 20 vols., 1802–42; hereinafter MARTENS. See SHEARER, supra n5, at p. 8. See GELLNER, NATIONS AND NATIONALISM, pp. 61–64 (1983) The eighteenth century actually reﬂects developments during the previous two to three hundred years. As the mediæval era came to an end, international law as it is known today came into being to be regulated by treaties. Extradition was part of this movement. See SHEARER, STARKE’S INTERNATIONAL LAW, pp. 7–14, (1994). See BEST, HUMANITY IN WARFARE, pp. 31 et seq., (1983). See, for example, THOMAS PAINE, THE RIGHTS OF MAN (1791).

20

Chapter 1

regulated the surrender of fugitives, protected those individual freedoms. Now, to say these developments all occurred at once in the law of extradition, creating the practice and procedure known today, would be ludicrous. For example, it took until 1850 for the principle of specialty (that is, that the fugitive may only be dealt with for the offences for which he was returned), to be fully worked out in the FrancoSaxon treaty of that year.70 However, the prevailing philosophies of the eighteenth century shaped the developing extradition law under the unfolding umbrella of international law – the eighteenth century ensured that extradition would be the appropriate method of returning fugitive offenders rather than any other system. The nineteenth century’s liberalism developed the detail of the process known now. The United Kingdom’s modern law began in 1794 with the Jay Treaty,71 concluded with the United States. It included many features known in today’s treaties, such as the need for a prima facie case and the requisition process being initiated by diplomatic communications. The mid-nineteenth century saw three treaties being concluded72 with the United States, France and Denmark, respectively. Each of these treaties was implemented by a separate statute. None of them contained provisions dealing with political offences or the principle of specialty, which both appear in every modern day United Kingdom treaty on extradition. By comparison, France had established extradition relations with not only most of Europe, but also with many emerging States in Latin America.73 These agreements incorporated most of the provisions seen in present-day extradition treaties.74 The problems created by land borders meant that ﬂeeing criminals were much more prevalent for France than for the United Kingdom before the end of the nineteenth century and so extradition treaties were essential if France was to sustain a credible system of criminal justice. As the ease of movement improved, however, the United Kingdom, too, had to make extradition arrangements,75 although up to 2000 the United Kingdom only surrendered between 30 and 50 fugitive offenders per year.76 These arrangements made by the United Kingdom were often in the form of bilateral treaties, but within the British Empire, as it then was, extradition was governed by the Imperial Fugitive Offenders Act 1881 with no treaties at all. When the

70 71

72

73 74 75

76

SHEARER, supra n5, at p. 18. 1 B.F.S.P.784; 5 MARTENS(I) 640. For a study of early U.S. extradition agreements, see Blakesley, Antiquity, supra n54. U.S.A, 1842 (The Webster-Ashburton Treaty), 30 B.F.S.P.360; 3 MARTENS(III) 456: France, 1843, 31 B.F.S.P. 194; 5 MARTENS(III) 20: Denmark, 1862, 54 B.F.S.P.27. BILLOT, supra n50, citing the Franco-Venezuelan treaty, 1853. Blakesley, Antiquity, supra n54, at pp. 50–52. Until 1995, thirty-four of the United Kingdom’s then forty-three extant treaties were concluded between 1870 and 1914, although several of these are now supplanted by the European Extradition Convention 1957, ETS 24, and the European Arrest Warrant. See the United Kingdom government’s Extradition Review 2001, Appendix E. This ﬁgure is set to rise due to the facility of extraditing within the European Union through use of the European Arrest Warrant (EAW), discussed below.

International Criminals and the Legal Process

21

Empire turned into the Commonwealth, this less formal system was retained, even though the relationship had changed into one of co-equal, sovereign States. Functionally, however, the Commonwealth Scheme is the same as a multilateral treaty. Modern extradition was fully in place by the turn of the century.

5.1 Developments in the Law Within the past thirty years, the western industrialised States have taken steps to amend extradition law in line with their own values in both speciﬁc and general terms. The rise of terrorism caused problems within extradition law because of the protection available thereunder for political offenders. To meet the problem within Western Europe, the European Convention on the Suppression of Terrorism77 was concluded. It excludes certain offences from the ambit of the political offence exemption. Furthermore, during the 1980s European police co-operation has been greatly improved, with the increase in cross-frontier terrorism and the policy of internal open borders adopted by the European Community since 1992 both necessitating closer liaison. The Schengen Group, which is one result of this improved co-operation, tackles issues to do with extradition, in particular, and with international criminal law in general. Moving outside Western Europe, the U.S.A. and the United Kingdom concluded a supplementary bilateral treaty in 1985 on very similar terms to the ECST78 as a direct response terrorism.79 These tinkerings with the political offence exemption will be examined in detail below, but this is one particular area where reform is likely to continue for some time yet. More concerning than the limitations on the political offence exemption, however, has been the attack on international human rights law standards in the wake of the attacks on the World Trade Center and the Pentagon on 11 September 2001. While the political offence exemption was being restricted, the transnational fugitive offender could rely on international human rights law to protect her/him.80 In the so-called War on Terrorism, it seems that human rights and procedural guarantees have been ignored with no possibility of challenge because the self-proclaimed campaign might be hindered.81

77 78

79 80 81

ETS 90: 15 INT.LEG.MAT.1272 (1976); hereinafter ECST. See Chapter Five, below. United States-United Kingdom Supplementary Extradition Treaty signed at Washington, Cm.294, UKTS 6 (1988) and, with comments, in Appendix 1 to the U.S. Senate EXEC.REPT 99–17, accompanying TR.DOC.99–8. It was ratiﬁed on 23 December 1986. The United Kingdom and the United States concluded a new treaty in 2003 – Cm5821 (2003). Viz. Soering v United Kingdom, European Court of Human Rights, Series A, Vol. 169. See NANDA, LAW IN THE WAR AGAINST INTERNATIONAL TERRORISM (2004); Campbell, ‘Wars on Terror’and Vicarious Hegemons: the UK. International Law, and the Northern Ireland Conﬂict, 54 INT’L & COMP. LQ 321 (2005); Norton-Taylor, War on terror ‘makes world more perilous’, The Guardian p. 14, 29 MAY 2003; Klein, A deadly franchise, The Guardian p. 25, 28 AUG 2003; Hilton, The 800lb gorilla in American foreign policy, The Guardian p. 22, 28 JUL 2004; Bunting, The prison built on fear, The Guardian p. 13, 30 AUG 2004; Steele, Annan attacks

22

Chapter 1

More generally, procedural rules are being simpliﬁed to allow for easier extradition. Within the European Union, for example, new conventions on extradition were drafted in the 1990s for use within member States.82 However, the EU member States did not universally ratify these conventions such that a more radical approach was adopted in 2002, the European Arrest Warrant, based on mutual recognition of judicial decisions in EU member States and their enforcement by the other EU member States.83 For a speciﬁed list of offences,84 double criminality is abolished and the surrender is based solely on the potential sentence in the State issuing the warrant. The process is wholly judicial, with no involvement by the executive. The United States, on the other hand, has concluded several bilateral treaties with States with which it has particular law enforcement problems85 to try

82

83

84

85

erosion of rights in war on terror, The Guardian p. 15, 11 MAR 2005; Norton-Taylor, Guantanamo is gulag of our time, says Amnesty, The Guardian p. 15, 26 MAY 2005. Convention on Simpliﬁed Extradition Procedures between member States of the EU, OJ 1995 No. C078/2, and the EU Convention Relating to Extradition between Member States, OJ 1996 No. C313/11. Council of the European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), OJ 2002 No. L190/1. See also, Report from the Commission based on Article 34 of the Council Framework Decision, COM(2005) 63 ﬁnal, 23 February 2005; ALEGRE AND LEAF, EUROPEAN ARREST WARRANT – A SOLUTION AHEAD OF ITS TIME? (2003). Article 2.2 The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are deﬁned by the law of the issuing Member State, shall, under the terms of this Framework Decision and without veriﬁcation of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organisation, terrorism, trafﬁcking in human beings, sexual exploitation of children and child pornography, illicit trafﬁcking in narcotic drugs and psychotropic substances, illicit trafﬁcking in weapons, munitions and explosives, corruption, fraud, including that affecting the ﬁnancial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ ﬁnancial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer-related crime, environmental crime, including illicit trafﬁcking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage-taking, racism and xenophobia, organised or armed robbery, illicit trafﬁcking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafﬁcking therein, forgery of means of payment, illicit trafﬁcking in hormonal substances and other growth promoters, illicit trafﬁcking in nuclear or radioactive materials, trafﬁcking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft/ ships, sabotage. U.S.-Colombian Treaty of 14 SEPT 1979, implemented to counter the drug trafﬁcking from Colombia to the U.S.A.; 27 INT.LEG.MAT.492 (1988). The treaty was declared unconstitutional by the Colombian Supreme Court in 1986, but a new Colombian Constitution of 1997 provides for the extradition of nationals – see Testimony of Samuel M. Witten, Deputy Legal Adviser, U.S. Department of State, before the Subcommittee on Criminal Justice, Drug Policy and Human Resources of the Committee on Government Reform, United States House of Representatives, October 1, 2003, and Third Report on International Extradition Submitted to Congress Pursuant to Section 3203 of the Emergency Supplemental Act, 2000 as enacted in the Military Construction Appropriations Act, 2001, Public Law 106–246 Relating to Plan Colombia. U.S.-Italian Treaty of 13 OCT 1983, implemented to deal with organised crime (TIAS 10837).

International Criminals and the Legal Process

23

and make sure that offenders do not ‘escape justice simply by crossing borders’ – these treaties are designed to make it easier to procure fugitive offenders for trial. Three thousand years later the problem is still the same. So much so, that dealing with fugitive offenders cannot be understood simply in terms of extradition; thus, deportation, abduction, ad hoc war crimes tribunals, hybrid courts and the International Criminal Court are all gaining increased importance in the response to international crime.

6. Plan and Structure This book divides into three parts. The ﬁrst section deals with the primary sources of extradition law, since that is still the principal mechanism for dealing with transnational fugitive offenders: the treaties and other international arrangements and the domestic legislation as seen through the practices and procedures of various States and legal systems. From that basis ﬂows a critical review of the necessary improvements to make extradition more effective. Secondly, and closely connected with the former chapters, it is necessary to discuss the options open to a fugitive offender challenging extradition which are not generally available in domestic trials. This discussion starts with a consideration of human rights conventions that may be raised to prevent an order to surrender. Following that there is a review of the measures in domestic extradition legislation and international arrangements which are special to extradition, ending with a major study of the most controversial topic in extradition law, the political offence exemption. It is in the ﬁnal section of the book that the alternative methods of dealing with transnational fugitive offenders other than extradition are considered in more detail. Alongside extradition, other means of rendition have been utilised in the past and this ﬁnal section commences by examining their lawfulness and effectiveness. Connected therewith is the intractable problem of obtaining jurisdiction over war criminals; increasingly, this will involve the use of supranational tribunals and their role vis à vis transnational fugitive offenders. The other part of this section deals with the related topic of refugee status which is of importance for extradition requests, fugitives’ rights and for alternative methods of rendition.

Chapter 2 Mechanisms for International Extradition1 1. Introduction Extradition can be deﬁned as a process whereby States provide to each other assistance in criminal matters. To achieve this international co-operation some form of arrangement, whether formal or informal, whether general or ad hoc, is necessary between the States involved. The arrangement may be based on a treaty, bilateral or multilateral, or on the application with respect to the requesting State of the requested State’s domestic extradition legislation. Regardless, some level of agreement must have been reached between the two States acknowledging that a fugitive might be surrendered given that certain prerequisites are met.2 Unless some

1

2

My gratitude is owed to the various diplomatic ofﬁcers charged with providing information in the embassies and non-governmental organisations in London. Their assistance, and that of the Ministries of Justice in their sending States, was invaluable. See the agreement reached between Switzerland and the U.A.E. in App. 9012/80, X v Switzerland, 24 D + R 205 at 213. In the light of an attempted coup in Equatorial Guinea in 2004 that was averted when those accused of plotting to carry out the overthrow were arrested in Zimbabwe, Equatorial Guinea and Zimbabwe entered into a bilateral extradition treaty arrangement, although it was not made retroactive, so it could not apply to those just arrested. For the difﬁculties where no or few extradition agreements exist, see van Zyl Smit, Re-entering the International Community: South Africa and Extradition, 6 CRIM.LF 369 (1995).

Mechanisms for International Extradition

25

such agreement is reached, then any other form of rendition, deportation or abduction, for instance, will be lacking appropriate guarantees. Where there is a treaty, then one issue that arises is priority between different types of treaty. ‘Ruritania’ may well have an extradition agreement with ‘Arcadia’, but it may simultaneously have entered into a multilateral human rights agreement. The issue then arises as to whether Ruritania’s human rights commitments should apply to its extradition dealings with Arcadia. These matters are considered below in Chapter 4, but there is an overlap with the matters for discussion here. Under Article 30 of the Vienna Convention on the Law of Treaties,3 where States have ratiﬁed “successive treaties relating to the same subject-matter”, then there is an elaborate set of rules dealing with priority. However, while extradition and human rights overlap, it is stretching a point to suggest that they are the same subject-matter. Thus, priority based on which is the most recent treaty under Article 30.3 is too simplistic. Given that the United Nations Charter provides that all members shall respect human rights4 and that in Barcelona Traction5 the ICJ held that obligations erga omnes derive in part from “principles and rules concerning the basic rights of the human person”, then it is suggested that the requested State should prima facie give priority to the human rights of the fugitive. However, this is not to suggest that all types of human rights are to take precedence over the interests of international criminal procedure. The right to life6 and freedom from torture and inhuman and degrading treatment, for instance, are in a completely different category to the right to family life, as is discussed in Chapter 4. Where the right to a fair trial as interpreted by the requested State might not be wholly satisﬁed by the procedures in the requesting State, then it ought to be a matter of degree as to whether there are sufﬁcient grounds for not fulﬁlling the requested State’s obligations under the extradition treaty. Inherent in any international extradition arrangement is the potential for reciprocity. It is explicit in a bilateral treaty where each party has agreed to surrender up fugitives to the other on the understanding that its requests will also be honoured. In ad hoc arrangements, designed to meet the situation where the fugitive is found in a State with which the requesting State does not possess general extradition relations, reciprocity is not a necessary element of the special agreement, but States usually extract an understanding that in similar circumstances their requests will be considered. The question is whether reciprocity is an essential requirement of extradition relations and, wherever it is so, to what degree it is to be applied. 3 4

5 6

8 INT.LEG.MAT.679 (1969). See Articles 1 and 55 in the light of Article 103: In the event of a conﬂict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. Barcelona Traction, Light and Power Co. Case, (Belgium v Spain), ICJ Rep. 3 (1970). See CDS v The Netherlands 96 INT’L L REP.383 (Dutch S.Ct, 1990).

26

Chapter 2

Some extradition legislation in civil law States does expressly demand a degree of reciprocity. The law of the Germany,7 provides as follows. s1(3) Provisions of international treaties shall supersede the provisions of this law provided they have been implemented and have become national law. s5 Extradition shall be granted only if, on the basis of assurances given by the requesting State, it can be anticipated that the State would execute a comparable German request.

On the other hand, the Swiss Law on International Judicial Assistance in Criminal Matters,8 is slightly more liberal as regards reciprocity. Art. 1(1) Unless otherwise provided in international agreements, this law shall govern all procedures of international co-operation in criminal matters, and in particular: (a) extradition of fugitives or convicted persons. . . . Art. 8(1) As a rule, a request shall be granted only if the requesting State guarantees reciprocity. The Federal Ofﬁce for Police Matters of the Federal Department of Justice and Police (Federal Ofﬁce) may require a guarantee of reciprocity if this is deemed necessary. (2) Reciprocity shall not be required speciﬁcally in cases of service of documents or if the execution of a request: (a) seems advisable by reason of the type of offence or the necessity of combating certain offences; (b) is likely to improve the situation of the fugitive or the prospects of his social rehabilitation; or (c) serves to clarify an offence committed against a Swiss national. (3) The Federal Council may, within the scope of this Law, guarantee to other States reciprocity.

However, despite the less strict language of the Swiss statute, the Swiss Federal Tribunal has, on occasion, examined the precise facts of the case before it in order to see whether, if those same facts were repeated, mutatis mutandis, with Switzerland as the requesting State, the authorities in the present requesting State would grant extradition.9 Even if reciprocity is to be an issue in a case, however, it should only ever be applied with respect to general extradition relations and never

7

8

9

Law on International Assistance in Criminal Matters, 23 DEC 1982; 24 INT.LEG.MAT.945 (1985); now reprinted as amended in the Federal Law Gazette of 27th June 1994 – further amended in s7 of the Law of 10th April 1995. 20 MAR 1981, 20 INT.LEG.MAT.1339 (1981), as amended 4 OCT 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern) – the text is a combination of both translations. See also the Decree on International Mutual Assistance in Criminal Matters, 24 FEB 1982 as amended 9 DEC 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern). The Swiss statute is only invoked where there is no applicable international agreement according to Art. 1(1), such an agreement being deemed to guarantee reciprocity. T v Swiss Federal Prosecutor’s Ofﬁce, 72 INT’L L REP.632 at 636 (1966).

Mechanisms for International Extradition

27

to speciﬁc details of extradition procedure as the Swiss Federal Tribunal seems to have done. Common law States, for instance, will extradite their nationals to civil law jurisdictions, even though the latter will not reciprocate in that speciﬁc detail, because overall the agreement will be reciprocal.10 Common law States, in fact, tend not to expressly demand reciprocity. It is, of course, implicit in every treaty arrangement, but it is not a matter for the courts. The Acts of 1870 to 1932 do not themselves provide that an arrangement made with a foreign State under section 2 of the [Extradition Act 1870] for the surrender by the United Kingdom to that foreign State of fugitive criminals accused or convicted of criminal conduct committed within its jurisdiction must provide for reciprocity of surrender by the foreign State to the United Kingdom of persons accused or convicted of similar criminal conduct in this country. In practice, extradition treaties do provide for a substantial degree of reciprocity, but the surrender by a foreign State of a fugitive criminal from the United Kingdom who is found in the territory of that foreign State is not governed by English law at all, but solely by the law of the foreign State that is a party to the treaty. If the foreign State fails to comply with its treaty obligations as respects surrender this is a matter for the Secretary of State; it has nothing to do with the English magistrate.11

This attitude reﬂects not only the view that it is better to be rid of a person who has previously committed crimes than to insist on reciprocity, but also the reluctance of common law courts in extradition matters to investigate the legal system of the requesting State. By contrast, civil law courts are prepared so to do and will look to see if reciprocity is possible or if it has previously been exercised in similar circumstances.12

10

11

12

Cf. Irish decision in the Corry case (The Guardian p. 8, 16 JAN 1997) not to extradite an Irish national to Germany because Germany would not extradite a German national in similar circumstances. The more usual stance of common law States is exempliﬁed by the Anglo-U.S. Extradition Treaty of 2003 (Cm.5821, 2003). The United States demands that United Kingdom requests are submitted with prima facie evidence, whereas US requests before the United Kingdom courts are subject to much less stringent demands: Art. 8(3) In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested. (emphasis added) For a critique of this imbalance between the United Kingdom and the United States, see Hayes, The new UK-US Extradition Treaty, Statewatch analysis no. 17, http://www.statewatch.org/ news/2003/jul/analy18.pdf; The Guardian p. 28 4 JUL 2003 and p. 10, 23 JUL 2003. In re Nielsen, [1984] AC 606 at 617. See also, Hempel v Attorney-General 77 ALR 641 (1987), Australian Federal Court, General Division. See T, supra n9, and In re Zahabian, 32 INT’L L REP.290 (Swiss Fed.Trib. 1963).

28

Chapter 2

While still dealing with the issue of reciprocity, the London Scheme for the Extradition within the Commonwealth13 is not a treaty, although it resembles one in form. The tradition within the Commonwealth is that the members do not conclude treaties, but that agreements are binding anyway.14 Since the Scheme is not a true multilateral convention, reciprocity is not guaranteed. The United Kingdom, for example, designates in its domestic legislation15 every member of the Commonwealth, regardless of whether all those countries could grant rendition to the United Kingdom. The extreme example of this approach is seen in Re Kahan,16 where extradition to Fiji was declared possible because Fiji was still designated under the then Fugitive Offenders Act 1967 despite the fact it had left the Commonwealth; as such, it could not reciprocate. However, other members of the Commonwealth have called for the Scheme to be converted into a treaty and for reciprocity to be an essential requirement.17 This proposition has also been suggested by Robinson,18 who, reﬂecting the views of many States, sees extradition “as a system which should only operate on the basis of reciprocity.” He, therefore, supports the idea of selective designation of other Commonwealth countries based on a guarantee of reciprocity from the requesting State. To follow this approach, though, would be regressive. The prevailing European view is that insistence on reciprocity is a distinct disadvantage. The number of cases is increasing where extradition is in the interests of both the requesting and the requested State.19 Botswana considers that the Commonwealth should adopt a positive attitude towards criminals. It is in a country’s own interests to prevent them from hiding behind borders. Why should any country wish to have within its borders a suspected criminal wanted for a serious offence – he should go back to whence he came, whether or not the other country is a party to reciprocal arrangements. His return would pave the way for reciprocity to be arranged for the future. It is strongly recommended that the Meeting exclude insistence on reciprocity.20

13

14

15 16 17

18

19

20

2002 version, available at http://www.thecommonwealth.org/shared_asp_ﬁles/uploadedﬁles/ {56F55E5D-1882-4421-9CC1-71634DF17331}_London_Scheme.pdf. Cf. Anglo-Indian Extradition Treaty 1992, and see the Suppression of Terrorism (India) Order SI 1993 No.2533; and 42 INT’L & COMP. LQ 442 (1993). NB. Cyprus and Malta have been designated Category 1 countries under s1 Extradition Act 2003 like other member States of the European Union – see SI 2003 No. 3333 as amended by SI 2004 No.1898. See s69 Extradition Act 2003 and SI 2003 No.3334. [1989] 1 QB 716. Fiji had been excluded by the Commonwealth Leaders on 16 OCT 1986. See THE 1982 REVIEW OF COMMONWEALTH EXTRADITION ARRANGEMENTS, pp. 23 et seq. The Review is available from the Commonwealth Secretariat; hereinafter COMMONWEALTH REVIEW. The Commonwealth Scheme Relating to the Rendition of Fugitive Offenders: A Critical Appraisal of some Essential Elements, 33 INT’L & COMP. LQ 614 at p. 618 (1984). Dr Torsten Stein in the COMMONWEALTH REVIEW, supra n17, at p. 25. Nevertheless, statutes in European States still call for reciprocity – see supra nn7 and 8. The Hon. MD Mokama, supra n17, at p. 23.

Mechanisms for International Extradition

29

Extradition should not be viewed as an arm of foreign policy. Generally speaking reciprocity should be present, but it should not be a sine qua non. One aim of extradition laws is to provide for mutual assistance in criminal matters and the fugitive’s prosecution for his alleged crimes should override the general requirement that extradition relations should be reciprocal. Reciprocity should go to the overall arrangement, not to speciﬁc cases or matters of procedure.21 Related to reciprocity is the concept of trust. While States will agree to a set of binding obligations during the negotiation of the treaty, once a person has been extradited to a requesting State, there are few ways to ensure that the latter upholds its obligations in that particular case. In Peci v Governor of Brixton Prison,22 the court held that extradition law “was founded on international comity” and that “in the absence of bad faith” it would be wrong for the court to reject assurances given by the requesting State. Nevertheless, in Government of Albania v Bleta,23 even though the court found that the assurance had been given in good faith, that it was not certain under Albanian law that the fugitive would be entitled to a retrial having been convicted in absentia.

2. Forms of Arrangement The majority of international extradition agreements are bilateral treaties. During the nineteenth and early twentieth centuries, as extradition law as it is known today was developing and spreading from Europe to the rest of the world, States would conclude bilateral treaties speciﬁc to the demands of those particular relations. Bilateral treaties make for a piecemeal approach to extradition practice, given that some differences will arise during each set of negotiations, but the agreement will be that best suited to the two parties’ particular situation.24 Moreover, whether arrangements can be updated in line with current practice is open to doubt unless the treaty so provides, although Kontou shows how customary international law may, in certain circumstances, provide rights for the fugitive not incorporated in the

21

22 23 24

In some cases the overall relations turn out not to be reciprocal. In 1978 Spain broke off extradition relations with the United Kingdom because no Spanish request had ever been granted. The Times, 12 January 2000. [2005] All ER (D) 390 at paragraphs 25 et seq. An example of this diversity in practice can be seen with the issue of retroactivity. The then AngloSpanish treaty of 1986 (UKTS 40, 1985) applied retroactively but only to people who entered the country after the treaty had come into force (Art. 22.2), whereas the Anglo-Brazilian Extradition Treaty; UKTS 58, 1997, expressly provided in Article 1.4 that it applied to crimes committed before the Order came into force. (4) Extradition shall be available in respect of an extradition offence as described in Article 2, whether such offence was committed before or after the entry into force of this Treaty.

30

Chapter 2

treaty.25 Undoubtedly though, bilateral treaties will continue to be the most numerous form of extradition arrangement. The different approaches by States to international treaties in domestic law also affect extradition laws. In England and Australia, for instance the treaty on its own cannot empower a court to grant surrender. Domestic legislation has to be passed to implement the treaties. The statutes permit extradition and the treaty can only be used to ﬁll any gaps or to improve the rights of the fugitive. In France and Switzerland extradition treaties are self-executing and provide the law for the extradition hearing with the domestic legislation ﬁlling the gaps and being a substitute mechanism when no treaty exists. In practice, there is little difference in the two approaches. While bilateral treaties were the ﬁrst method to be used to conclude extradition relations, States have since developed alternative forms of arrangement. For instance, regional conventions have proved popular. A universal extradition treaty open to all States might be though too general to be any more effective in dealing with transnational fugitive offenders than ad hoc arrangements for speciﬁc cases. However, the United Nations General Assembly has produced a model treaty on extradition26 which has formed the basis for inter-State extradition agreements.27 Furthermore, in an effort to ensure serious offenders do not escape justice, the United Nations sponsored anti-terrorist conventions have included clauses to permit them to be used as surrogate extradition treaties where no treaty exists between the requesting and requested States.28 In more speciﬁc situations, States with close geographical and historical connections have reached agreements allowing for very much simpliﬁed procedures. Finally, States have occasionally provided for extradition without any international arrangement through domestic legislation; the object is to ensure that a State does not become a safe-haven for criminals and to facilitate in a practical way the comity of nations. The following review is designed to highlight State practice and indicate some of the major issues relating to the form of arrangement.

25

26

27

28

KONTOU, THE TERMINATION AND REVISION OF TREATIES IN THE LIGHT OF NEW CUSTOMARY INTERNATIONAL LAW, pp. 72–74 (1994). UNGA Res.45/116, 14 DEC 1991, 30 INT.LEG.MAT.1407 (1991); cf. Swart, Refusal of Extradition and the United Nations Model Treaty on Extradition, 23 NETH.YB INT’L L 175 (1992). CLARK, THE UN CRIME PREVENTION AND CRIMINAL JUSTICE PROGRAM: FORMULATION OF STANDARDS AND EFFORTS AT THEIR IMPLEMENTATION (1994). See Re Lodhi [2001] EWHC Admin 178, 13 March 2001, where the request relied on the United Nations Convention against Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances 1995 to provide extradition relations between the United Kingdom and the UAE. See also, Council of Europe Agreement on Illicit Trafﬁc by Sea, implementing article 17 of the United Nations Convention against Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances, 1995, ETS 156, which allows for surrender of individuals detained by the intervening State – See Articles 13–15 and the Explanatory Report at paragraphs 69 et seq., http://conventions.coe.int/Treaty/en/ Reports/Html/156.htm.

Mechanisms for International Extradition

31

2.1 Multilateral Arrangements The idea of a general, universal extradition treaty has been proposed frequently in the past,29 but has, as yet, only produced the United Nations’ model treaty, discussed above. The reasons are not hard to divine. As Stein has commented with respect to Europe, [the] advantages of a uniform system are beyond doubt, but on the other hand the European Extradition Convention of 195730 reﬂects only the minimum standard of joint convictions. . . .31

At a worldwide level, joint convictions are at a minimum.32 Moreover, since the practice of extradition tends to be regional there is little need for a universal convention, especially if extradition is permitted by domestic legislation on an ad hoc basis with States with which the requested State has no permanent relations. The model United Nations treaties, therefore, represent a halfway house, trying to promote extradition arrangements between States without attempting to create a universally binding treaty for the entire international community. At a regional level, though, multilateral arrangements abound. a. The Americas One of the earliest regional systems was concluded in the Americas and the States of the region have been developing it ever since, now under the auspices of the Organisation of American States. International co-operation in criminal matters commenced in 1879 with the Lima Agreement, but regional extradition is taken to have started with the Montevideo Agreement of ten years later.33 It was then developed in 1902, 1911, 1923, 1928, 1933, 1934, 1940, 1957 and ﬁnally in 1981. The 1981 Inter-American Convention on Extradition34 is the current regional agreement, but it expressly declares in Article 33 that it shall not supersede earlier bilateral or multilateral treaties entered into by the State parties. As well as the plethora of conventions to which regard must be had, there is also regional customary law,35 in part based on the pervasive and persistent themes found in these agreements.36 29 30 31 32

33 34

35 36

SHEARER, EXTRADITION IN INTERNATIONAL LAW, p. 23 (1971). ETS 24. COMMONWEALTH REVIEW, p. 98, supra n17. See, for example, the Report of the Committee of Experts for the Progressive Codiﬁcation of International Law, L.N.Doc.C.51 M.28.1926. V. See Harvard Research in International Law: Extradition, 29 AM.J INT’L L Supp. at pp. 275 et seq. 20 INT.LEG.MAT.723 (1981). See also Council of Europe R(82)950 instructing the European Committee on Crime Problems to study whether Council of Europe member States could accede to the Inter-American Convention. The Asylum Case, ICJ Rep. 166 at 316 (1950). Nicaragua v U.S.A., ICJ Rep. 14 at 87–88 (1986).

32

Chapter 2

b. The Arab League37 The League of Arab States has also concluded two conventions providing for extradition amongst State parties.38 The ﬁrst was signed in 195239 by six States and ratiﬁed or acceded to by ten.40 A supplementary agreement was signed in Riyadh on April 4, 1983. Nineteen States have ratiﬁed it,41 although this group does not include Egypt, a party to the 1952 Agreement, because Egypt left the Arab League following the 1978 Camp David Accords with Israel. The 1983 Agreement not only develops the themes of the 1952 Convention, it signiﬁcantly extends its geographic remit. While in 1952 the agreement covered Arab States in the Middle East, Egypt and Libya, the new agreement completes the gaps in the Middle East and now takes in the Arab and Islamic States of the Sahara and Sahel regions of Africa. It is a comprehensive extradition convention which now provides for the surrender of fugitive offenders throughout a signiﬁcant portion of the world. c. Europe The most extensive series of regional agreements, however, is found in Europe. They also orchestrate the most trafﬁc in extradition requests. Europe for these purposes should be seen as a series of concentric and overlapping circles, with various extradition arrangements in force and some States belonging to more than one grouping. The outer circle with respect to extradition would encompass the Council of Europe’s European Extradition Convention of 1957.42 It is a highly successful regional convention, forming the procedural framework for more extraditions than any other treaty. By 2005, forty-six States had ratiﬁed it.43 It provides for extra-

37

38

39 40

41

42 43

See also, the Cooperation Council for the Arab States of the Gulf (GCC), http://library.gccsg.org/English/gcc011.htm. I am extremely grateful to A. Oussayﬁ at the League of Arab States in London for supplying me with information. Available in English, 159 B.F.S.P.606. In force 28 August 1954. Egypt, Iraq, Jordan, Lebanon, Saudi Arabia and Syria. Documents of ratiﬁcation were deposited by Egypt, Jordan, Saudi Arabia, the U.A.E., Bahrain, Kuwait, Iraq, Libya, Syria and S.Yemen, as it then was. In addition to the nine remaining ratiﬁers of the 1952 Agreement (Egypt excluded), documents of ratiﬁcation have been received from Tunisia, Algeria, Djibouti, Sudan, Mauritania, North Yemen (now reunited with S.Yemen, another ratiﬁer), Somalia, Oman, Qatar and Morocco – the State of Palestine also ratiﬁed. ETS 24. See also the two additional protocols ETS 86 (1975) and ETS 98 (1978). Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Federal Republic of Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Serbia and Montenegro, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey and the United Kingdom. Israel and South Africa have acceded, although not members of the Council of Europe.

Mechanisms for International Extradition

33

dition without proof of a prima facie case and gives parties the discretion to refuse to extradite their nationals; as such, it is modelled on European practice as found in earlier bilateral agreements. More importantly, however, in terms of the usefulness in general of regional conventions, the European Extradition Convention displays some of the failings that are inherent in multilateral arrangements where the interests of many parties have to be satisﬁed. For example, Article 28, paragraphs (1) and (2) declare that the Convention supersedes existing bilateral and multilateral arrangements between the parties and that subsequent such arrangements may only be seen as supplementary to the Convention, while paragraph (3) provides that a uniform law in force in relation to two or more parties shall take precedence. Indeed, the F.R.G. only ratiﬁed the Convention in 1976 after it had concluded supplementary arrangements with most of the other parties.44 This attitude towards the Convention reﬂects the fact that it is the “minimum standard of joint convictions”.45 Secondly, Article 26 permits reservations to be made in respect of any provision of the Convention. The exhortation in paragraph (2) that such reservations should be withdrawn as soon as possible has largely gone unheeded. The ability to make reservations is essential to the conclusion of most multilateral conventions, but, as Honig observed in 1956, to permit numerous reservations by signatory States, may well result in multiplying disputes which at present rarely occur in the application and interpretation of bilateral treaties.46

Belgium indicated during the Sixties that one reason it had not ratiﬁed the Convention at that time was that due to the large number of important reservations already entered to the Convention, a signatory would end up being bound, not by a general convention but by a number of agreements parallel to existing bilateral conventions.47

By reason of its general applicability throughout Europe, the European Extradition Convention is not always appropriate to the special needs of any State in those general relations and in its relations with another speciﬁc State. Furthermore, it represents a compromise at the lowest level and may require supplementary details.

44

45 46 47

(see http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=024&CM=1&DF=08/06/ 05&CL=ENG). See COUNCIL OF EUROPE, LEGAL ASPECTS OF EXTRADITION AMONG EUROPEAN STATES, at p. 67 (1970). Supra n17. Extradition by Multilateral Convention, 5 INT’L & COMP. LQ 549 at p. 551 (1956). Supra n44.

34

Chapter 2

These failings are inevitable in any multilateral extradition convention. Nevertheless, despite all these problems, it has proven very effective in dealing with the largest concentration of transnational fugitive offenders over ﬁve decades. The European Community and then, later, the European Union, has a checkered history with regard to extradition between member States.48 Policing powers were initially outside the purview of the European Community, but an inter-State group known as TREVI did form during the 1970s to co-ordinate on drugs, terrorism,49 serious crime, public order and scientiﬁc matters and, ﬁnally, the implications of the removal of internal borders in 1992. TREVI was not strictly a European Community body and, indeed, the Commission was excluded from its deliberations. However, whilst general policing issues might have been beyond the traditionally recognised remit of the European Community, transnational fugitive offenders and their rendition to face trial should undoubtedly have been within the purview of a supranational organization which allowed for freer movement of persons within member States and which, by its very nature, would provide greater opportunities for transnational economic crimes. The creation of the European Union in 1992, however, enabled crime related matters to be brought within the Third Pillar of the Maastricht Treaty,50 Justice and Home Affairs.51 The work of TREVI in this ﬁeld came within what was then an Article K.4 committee and a simpliﬁed extradition scheme for use within the then Fifteen was promulgated in 1995.52 Subsequently, the European Union Council drafted another treaty to supplement existing multilateral extradition arrangements that apply between the various member States.53 The 1995 treaty supplemented the Council of Europe’s 1957 European Extradition Convention by providing for a simpliﬁed scheme of extradition between member States based on the fugitive’s consent and the requested State’s agreement. The degree of information demanded by the 1957 Convention was also dispensed with and the fugitive could renounce his entitlement to the protection of the specialty rule.54 The 1996 treaty supplemented not only the 1957 Convention, but also the Council of Europe’s 1977 European Convention on the Suppression of Terror48

49 50 51

52

53

54

Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. See Foakes, The European Community and Terrorism, [1983] TOP.LAW 19. 31 INT.LEG.MAT.247 (1992). On JHA matters in the 1990s, see Peers, Justice and Home Affairs, 49 INT’L & COMP.LQ 222 (2000). 1995 OJ C 78, 10 MAR 1995; and see also, 1996 OJ C 375. There is also the wholly procedural Agreement between the Member States of the European Community on the Simpliﬁcation and Modernisation of Methods of Transmitting Extradition Requests opened for signature in San Sebastian on 26 May 1989 – see SI 1996 No. 2596. Convention Relating to Extradition between the Member States of the European Union, 1996 OJ C 313 – Explanatory Report, 1997 OJ C 191. See also, Mackarel and Nash, Extradition and the European Union, 46 INT’L & COMP.LQ 948 (1997). See Chapter Four, below.

Mechanisms for International Extradition

35

ism,55 the 1990 Schengen Agreement56 and the Benelux Treaty.57 Of note, it limited the scope of the political offence exemption,58 the rules on the non-extradition of nationals and the exclusion of ﬁscal offences from the deﬁnition of extraditable crimes, it relaxed the specialty rule59 and improved some of the procedural elements of extradition law. With respect to both the 1995 and 1996 the treaty, the European Union did not attempt to draft a comprehensive multilateral extradition treaty, but simply tagged on less onerous obligations for the requesting State to existing agreements to which member States were already party. Whilst one might applaud this time-saving technique, there is a sense of expediency triumphing over proper provision. An agreement between the then Fifteen could have been honed to produce a treaty designed for their speciﬁc needs. In particular, the member States could have addressed the question of jurisdiction over crimes against the European Community and European Union; lacking territory and other appurtenances of Statehood, the latter’s own criminal jurisdiction is in doubt. Thus, a treaty between member States of the European Union could provide, inter alia, for the systems needed to deal with crimes against the supranational organization itself. Ultimately, however, extradition within the European Union was to be streamlined as a result of the events of 11 September 2001 more than anything else. The European Arrest Warrant (EAW)60 can be traced back to the Conclusions of the Tampere European Council of October 1999.61 Nevertheless, it was the terrorist attack on the United States in September 2001 that resulted in the European Commission’s proposal being adopted by June 2002.62 As a consequence of the EAW being set out in a Framework Decision under Article 34 of the Treaty of European Union,63 it was binding on member States, but did not need ratiﬁcation like a treaty

55 56 57

58 59 60

61 62

63

ETS 90: 15 INT.LEG.MAT.1272 (1976); hereinafter ECST. See Chapter Five, below. 30 INT.LEG.MAT.84 (1991). See also, MEIJERS, SCHENGEN, 2nd ed. 1992. Treaty on Extradition and Mutual Assistance in Criminal Matters, 27 June 1962, and Protocol, 11 May 1974. See Chapter Five, below. See below on ﬁscal offences and Chapter Four for the other topics. See generally, ALEGRE AND LEAF, EUROPEAN ARREST WARRANT: A SOLUTION AHEAD OF ITS TIME? (2003). See http://europa.eu.int/council/off/conclu/oct99/oct99_en.htm#milestones, para. 35. See OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). See OJ C 324, 24 DEC 2002, p. 5, Consolidated Version of the Treaty of European Union. Art. 34.2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: .... (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect. . . .

36

Chapter 2

would have done. The principal changes effected by the EAW are that extradition within the Twenty-Five is now wholly judicial with no executive involvement, nationality is no longer a bar to extradition,64 and there is no requirement of double criminality for the speciﬁed offences.65 Fundamentally, extradition within the European Union now relies on the backing of a warrant and is akin to transfer within a single State. Staying with the European Union, the Dutch concluded a simpliﬁed trilateral extradition agreement with Luxembourg and Belgium in 1962. The Benelux Convention on Extradition and Judicial Assistance in Penal Matters66 came into force for the three States before any of them ratiﬁed the European Extradition Convention,67 however it follows the general outline of that arrangement. Nevertheless, when the Netherlands ratiﬁed the European Extradition Convention in 1969 it entered a reservation rejecting Article 28(1) and (2) in relation to Belgium and Luxembourg and went further still by reserving the future right to derogate from those same provisions to accommodate any E.C. arrangement.68 The interplay of these multilateral arrangements reveals how extradition agreements are best concluded between as few parties as possible so as to achieve the most effective scheme. The Benelux Accord and the European Extradition Convention were both added to and further facilitated through Articles 59 and following of the Schengen Accord of 19 June 1990.69 The Schengen Group comprises Austria, Belgium, Denmark, Finland, France, Germany, Greece, Holland, Iceland, Italy, Luxembourg, Norway, Portugal, Spain and Sweden; Norway and Iceland, which are not members of the EU, are part of the Schengen agreement.70 The initial agreement of 14 June 1985 of the three Benelux States, France and Germany prepared the way for open internal borders between the ﬁve before 1993; the 1990 Accord includes a new treaty negotiated in 1989 incorporating, inter alia, the right to ‘hot pursuit’. The Treaty of Amsterdam integrated Schengen through the acquis71 into the European Union

64

65 66

67 68 69 70

71

Although under Art. 5.3, the requested State (executing judicial authority – Art. 3) can require that if a custodial sentence is imposed in the requesting State that such sentence shall be served in the State of nationality. See Chapter Four. Article 2, but note para. 4 and Art. 4.1. See Chapter Three. See De Shutter, L’Entraide Judiciaire en Matière Pénale dans le Cadre du Benelux, [1967] REV.BELGE DE DR.INT’L 102. See also, le Traité . . . en matière d’intervention policière transfrontalière, 8 JUN 2004. Supra n42. See COUNCIL OF EUROPE, supra n44, at p. 78. Supra n56. Ireland and the United Kingdom have the right to opt in to parts of Schengen – see Council Decisions 2002/192/EC and 2000/365/EC. See Protocol 2 to the Consolidated Version of the Treaty Establishing the European Community, pp. 355 et seq. of the Selected Instruments taken from the Treaties, book I, volume I, 1999 edition, published by the Ofﬁce for Ofﬁcial Publications of the European Communities, referred to at OJ C 325, 24 DEC 2002, p. 33 at p. 37.

Mechanisms for International Extradition

37

thus [bringing it] under parliamentary and judicial scrutiny and attaining the objective of free movement of persons enshrined in the Single European Act of 1986 while ensuring democratic parliamentary control and giving citizens accessible legal remedies when their rights are challenged. . . .72

Schengen is yet another example of a speciﬁc response to a particular situation requiring special provisions beyond the minimum as found in the European Extradition Convention. The ﬁnal European multilateral scheme that needs to be examined applies between members of the Nordic Union.73 The extradition agreement came into force before the Union itself 74 and is based on reciprocal legislation in the ﬁve States.75 The scheme resembles in-State rendition more than a true international agreement with §4 of the Norwegian Act, for example, permitting the surrender of political offenders, given that the offence charged is triable under Norwegian law and the fugitive is not a Norwegian national. There is a reasonable amount of trafﬁc under the scheme with even Iceland, the most remote party, receiving one or two requests a year and sending about three to ﬁve. Given the special relationship of the parties it proved possible for them to negotiate the arrangement best suited to their needs which went beyond the basic minimum of the European Extradition Convention. To conclude this section on Europe, with the collapse of the Iron Curtain in 1989–90, most of the former Soviet Bloc States joined the Council of Europe76 and acceded to the European Extradition Convention.77 Prior to 1989, however, the East European States relied on bilateral agreements to conduct their extradition relations,78 although so similar were they that they were at least the equal of the European Extradition Convention, subject as it is to several reservations. It is unlikely that any of these bilateral treaties survived the change in government, for they permit the extradition of political offenders inter se on the ground that such criminals were a threat to the State socialist system as a whole.79 72 73 74 75

76 77

78

79

See http://europa.eu.int/scadplus/leg/en/lvb/l33020.htm. Denmark, Finland, Iceland, Norway and Sweden. Nordic Union Treaty, 1 JULY 1962, 434 UNTS 145. E.g. The Danish Law No. 27 of 3 February 1960 as amended by Law No. 251 of 6 December 1975, the Swedish Act (1959:254), the Icelandic Law No. 7/1962, as amended by 44/1975 and 19/1991, and the Norwegian Act of 3 March 1961, as amended by the 1985 Extradition Act (No. 71, 14 June 1985). Hungary joined in November 1990. Albania, Armenia, Azerbaijan, Bosnia-Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Moldova, Poland, Romania, the Russian Federation, Serbia and Montenegro, the Slovak Republic, Slovenia and the former Yugoslav Republic of Macedonia were all party as at 1 July 2005. Schmid, Extradition and International Judicial and Administrative Assistance in Penal Matters in East European States, 34 LAW IN E.EUROPE 167, esp. pp. 169–73 (1988), and GINSBURGS, THE SOVIET UNION AND INTERNATIONAL CO-OPERATION IN LEGAL MATTERS, 1994. Schmid, supra n78, at p. 180.

38

Chapter 2

In sum, the many levels of extradition agreements that exist in Europe overlap and reduce the universality and uniformity of the European Extradition Convention.80 It is, however, inevitable that an agreement that is acceptable to forty-six States should not necessarily meet the needs of some of those States with extremely close ties and that they would wish to conclude more speciﬁc relations. Despite these criticisms, though, the European Extradition Convention has proved a great success and provides for the extradition of fugitive offenders throughout Europe. d. The British Commonwealth Ever since 1843 there has been a separate system for extradition throughout what is now the Commonwealth.81 In the days of the British Empire, the scheme was established by statute passed at Westminster. Indeed, the Fugitive Offenders Act 1881 governed extradition in the Empire and then the Commonwealth until 1966.82 The Commonwealth adopted the Scheme Relating to the Rendition of Fugitive Offenders within the Commonwealth in 196683 which, although similar to a multilateral convention, does not have the status of a treaty. It provides guidelines for extradition to and from Commonwealth countries and dependencies, but it is only put into effect through domestic legislation. In 1982 the entire Scheme was reviewed84 leading to some amendments,85 and a completely revised version was agreed in 1990.86 The events of 11 September 2001, however, gave rise to a further revision and the latest version is the London Scheme for Extradition within the Commonwealth.87 Despite pressure from the new Commonwealth,88 the Scheme has not been converted into a treaty and there is no requirement of reciprocity;89 80 81 82

83 84 85 86 87 88

89

Supra n42. 6 & 7 Vict. c.34, An Act for the Better Apprehension of Certain Offenders. See, however, State of Madras v Menon, [1954] All Ind.R 517 (SC India), where it was held that after India became a Republic the 1881 Act was no longer applicable. In Re Ashman, [1985] 2 NZLR 244 (decided 31 May 1976), the Supreme Court of New Zealand held that the 1881 Act, with its references to “Her Majesty’s dominions”, could not apply to the independent New Zealand. On 15 July 1976, the New Zealand parliament passed the Fugitive Offenders Amendment Act 1976, reinstating in force the 1881 Act – one has to wonder at this example of expedience over reform ten years after the ﬁrst Commonwealth Scheme, infra n83. See now, New Zealand Extradition Act 1999, Part 3. Cmnd 3008. Supra n17. LMM(83)33. See also LMM(86)64. LMM(90)32. Supra n13. E.g. Zimbabwe, Fiji, Sri Lanka, Malaysia, Trindad & Tobago and Bangladesh. See the COMMONWEALTH REVIEW, supra n17, pp. 22–26. Cf. Dominica which sees the Commonwealth as a family of nations, and one uniform Act applicable to all Commonwealth countries could render reciprocity, at least within the Commonwealth, obsolete. NB Fiji was not at the relevant time a member of the Commonwealth, but, because the U.K. does not require reciprocity, it was able to seek a fugitive under the British domestic legislation – Kahan, supra n16. Supra n17 at p. 79. Clause 1 talks of returning fugitives to other parts of the Commonwealth with-

Mechanisms for International Extradition

39

therefore, even if the requesting State has not brought legislation into force to implement the Scheme, the requested State should still operate its own Schemebased statute when dealing with the request.90 The most notable thing, however, about the Scheme is that it applies to ﬁfty-three States across the entire world with many different forms of government.91 While it was suggested above that an international multilateral convention was a practical impossibility, the Commonwealth Scheme might indicate otherwise, although the historical ties between the member States and the common legal system obviously help to make it workable.92 Whether it could be the precursor of a general international convention is open to question. Contrary arguments may be found in the promulgation of a bilateral treaty between the United Kingdom and India93 to meet their speciﬁc needs.94 In and of itself, there is nothing unusual in two sovereign States making arrangements for assisting each other in criminal matters. However, this treaty represents the ﬁrst general extradition agreement between the United Kingdom and another Commonwealth State; before this treaty, general extradition relations have always been carried out in line with the London Scheme for Extradition within the Commonwealth by means of domestic legislation. Moreover, the Anglo-Indian treaty being bilateral, is self-evidently reciprocal unlike the Scheme and it provides the further beneﬁt that because it has been concluded between just two parties it can cater for their speciﬁc needs in some detail. For instance, while both the Scheme and this new treaty use the eliminative test for deﬁning extradition crimes, the treaty requires merely one year’s imprisonment as a sufﬁcient possible sentence while the Scheme’s minimum is two years. Secondly, the 2002 Commonwealth Scheme provides an exception to extradition by way of a discretion where the death penalty could be imposed in the requesting but not the requested State (Article 15.2(a)). Under Article 15.2(c), in exercising that discretion, the requested State may take the following into account.

90 91

92

93

94

out any reference to reciprocity. Clause 23(a) speaks of supplementary and alternative arrangements, 23(b) only of modiﬁcations, neither permits non-application. Cf. Nauru constitutionally requires reciprocity. Antigua and Barbuda, Australia, The Bahamas, Bangladesh, Barbados, Belize, Botswana, Brunei Darussalam, Cameroon, Canada, Cyprus, Dominica, Fiji Islands, The Gambia, Ghana, Grenada, Guyana, India, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Maldives, Malta, Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Papua New Guinea, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Swaziland, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United Kingdom, United Republic of Tanzania , Vanuatu, and Zambia. It is interesting to note that Cyprus, a civil law system, is treated as a foreign State, not a member of the Commonwealth, by the United Kingdom and extradition is conducted under the European Extradition Convention 1957 and the EAW – Extradition Act 2003 (Amendment to Designations) Order 2004, SI 2004, No. 1898, s2. The simpliﬁed scheme between Australia and New Zealand, discussed infra n99, is inherently different from a bilateral treaty and is a result of the proximity of the two States. 21 September 1992. The treaty was published and presented to Parliament on December 2nd 1992. See supra n14, and Gilbert, The Anglo-Indian Extradition Treaty, 42 INT’L & COMP.LQ 442 (1993).

40

Chapter 2 In determining under paragraph (a), whether a person would be likely to suffer the death penalty, the executive authority shall take into account any representations which the authorities of the requesting country may make with regard to the possibility that the death penalty, if imposed, will not be carried out.

The United Kingdom and India were able to agree that “extradition may be refused, unless the Requesting State gives such assurance as the Requested State considers sufﬁcient that the death penalty will not be carried out”. Where States can agree bilateral agreements, then there is scope for creating a system that meets their individual needs and which is inherently reciprocal, but multilateral agreements are designed to obviate the need for detailed negotiations with all the other parties where this would represent too great an effort for any foreseeable return – in such circumstances, the aim is to promote State co-operation in criminal matters and issues of reciprocity should not be at the forefront. The Anglo-Indian treaty fuses well the provisions of the Commonwealth Scheme and the former 1989 British Extradition Act and overall provides a balance between efﬁcient assistance in criminal matters and the protection of the fugitive’s rights and freedoms. e. The Multilateral Anti-Terrorist Conventions95 From the 1970s onwards the United Nations sponsored a whole series of antiterrorist conventions aimed to prevent certain offenders ﬁnding a safe haven. As part of that objective, they add the designated offences to any list of extraditable crimes and act as a surrogate extradition treaty where no arrangement exists between the requesting and requested States.96 The number of signatories to these conventions is usually very great and they will permit extradition to States with which no general relations exist.97 In the particular case of these specialised treaties, there is no doubt that a truly worldwide arrangement is possible, but the actual conventions provide none of the procedural detail which is what tends to create the difﬁculties in drafting general multilateral agreements. In conclusion, there are several multilateral, regional and otherwise, arrangements in existence which probably govern more extraditions in practice than bilateral treaties; however, they are usually subject to reservations and State parties

95

96

97

Betti, New Prospects for inter-state co-operation in criminal matters: the Palermo Convention, 3 ICLR 151 (2003). See also, Art. 16 United Nations Convention Against Transnational Organized Crime 2000. E.g. Hague Convention for the Suppression of the Unlawful Seizure of Aircraft, 10 INT.LEG. MAT.133 (1971), Art. 8: Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 27 INT.LEG.MAT.672 (1988), Art. 11. See Re Lodhi [2001] EWHC Admin 178, 13 March 2001. For instance, the United Kingdom provided for extradition under multilateral treaties in the Extradition Act 2003 (Parties to International Conventions) Order 2005, SI 2005, No. 46, SCHEDULE Territories, Conventions and Conduct.

Mechanisms for International Extradition

41

frequently draw up special sub-schemes with their geographical neighbours. The regional, multilateral conventions provide a useful fall-back and, more importantly, an overall framework for extradition.

2.2 Simpliﬁed Schemes Some of these have already been touched on in the previous section; the Benelux trilateral accord, the European Union’s EAW and the ﬁve party Nordic Union scheme are very simple by comparison with the usual international extradition treaties. Although both countries are members of the Commonwealth and could, therefore, rely on the Scheme,98 Australia and New Zealand conduct their extradition relations on the basis of reciprocal legislation.99 The statutes permit the arrest warrants of one State to be endorsed and executed in the other State. There is no need for a diplomatic request and the executive has no say in the matter. Extradition is conducted solely at the level of the police and courts. A remarkably similar procedure existed between Ireland and the United Kingdom.100 In 1949 Ireland gained full independence from the United Kingdom and so the two should have concluded a bilateral treaty like any other foreign States; oddly, they continued to use legislation and procedures dating from the time when Ireland was part of the United Kingdom. Eventually, almost simultaneously, the British House of Lords101 and the Irish Supreme Court102 held the process to be unlawful, requiring new legislation to regularise the situation. The British Backing of Warrants (Republic of Ireland) Act 1965 and Part III of the Irish Extradition Act 1965 provided initially that the arrest warrants of the other State would be endorsed as if the crime had occurred in the requested State. There was no prima facie requirement since the Irish were in the process of ratifying the European Extradition Convention103 and wanted to keep its extradition laws consistent, while such a practice also continued the pre-independence procedure. The British statute was not substantially altered until 2003,104 but major changes occurred in the Irish law. With the passing of the Irish Extradition (European Convention on the Suppression of Terrorism) Act 1987, the political offence exemption in Ireland was severely curtailed, so the Dáil provided a new protection in the Extradition (Amendment) Act 1987.105 Although not requiring prima facie proof, the British authorities had

98 99 100 101 102 103 104 105

Supra n86. See the Australian Extradition Act 1988, Part III and New Zealand Extradition Act 1999, Part 4. See O’Higgins, The Irish Extradition Act,1965, 15 INT’L & COMP. LQ 369 (1966). R v Metropolitan Police Commissioner, ex p.Hammond, [1964] 2 All ER 772. The State (Quinn) v Ryan, [1965] IR 70. Ireland ratiﬁed on 2 MAY 1966. See the Suppression of Terrorism Act 1978 and the Criminal Justice Act 1993. See also, the Extradition (Amendment) Act 1994.

42

Chapter 2

to produce sufﬁcient evidence to convince the Attorney-General that the case would proceed on surrender. It is interesting at this juncture for the way it reveals that reciprocity need only go to the general extradition arrangement and need not mean that the detailed provisions thereof have to be mirrored in the two sets of laws.106 The Anglo-Irish system has now been subsumed in the European Union EAW.107 Given that the EAW reﬂects the practice of the original Anglo-Irish backing of warrants, the situation has come almost full circle. The Australian-New Zealand extradition arrangement and the EAW reﬂect the historical, geographical and legal links between each of the sets of States. The informality, which is akin to a system of rendition within a federal State,108 could not be repeated outside such a closely-integrated community of States. Such arrangements represent a view of extradition where mutual assistance in criminal matters as between the States takes priority.

2.3 Extradition without a General Arrangement Occasionally, the fugitive is requested by a State with which no extradition arrangement already exists. Despite the arguments of Grotius,109 extradition is an imperfect obligation and there is no general international duty to extradite or punish the fugitive. If there is no arrangement, then there is no duty to extradite and everything is dependent on the comity of nations.110 Nevertheless, there are strong arguments for providing for some means of rendition even in these circumstances. 106 107 108

109

110

Cf. T v Swiss Federal Prosecutor’s Ofﬁce, supra n9. Supra n62. And see SI 2003 No. 3333 designating Ireland. See also the U.S. inter-State system of rendition 18 USC §3182. The ﬁnal example of simpliﬁed rendition is unique in extradition practice and will probably never be repeated. In the period from the fall of the Berlin Wall on November 9, 1989, to the reuniﬁcation of the two Germanies on October 3, 1990, several members of the terrorist group, the Red Army Faction, were found in the then German Democratic Republic. According to newspaper reports at the time (The Guardian p. 8, 27 SEP 1990), they were then ‘extradited’ to the Federal Republic of Germany. Given that there was no extradition treaty or reciprocal legislation in force with respect to the two Germanies, this description was not technically accurate. The terrorist suspects were surrendered on the basis of their own consent and as a result of a decision of the Stadtgericht Berlin (Regional Court) concerning the proceedings against Susanne Albrecht. The Albrecht case held that during the transition period to full reuniﬁcation, the Federal Republic was not a “foreign State” as regards the Democratic Republic. Mutual assistance could be granted according to internal legal principles rather than those which govern two separate States. This unique situation provides yet another example of the rendition arrangements that have been used by States which are much more simpliﬁed than the general treaty based agreements. (The above information was supplied by Bernd Oetter, Consul General at the embassy of the Federal Republic of Germany in London. So unusual is the arrangement that I have quoted heavily from his letter to avoid any errors. Needless to add, I am deeply indebted to him for this information). DE JURE BELLI AC PACIS, Bk II, c.21, paras. 3 and 4. Cf. PUFENDORF, ELEMENTS, Bk III, c.3, paras. 23 and 24. See the Asil Nadir Case, The Guardian pp. 1 and 22, 6 MAY 1993. His presence in the TRNC meant that he was unobtainable given that only Turkey had recognised the TRNC – The Guardian pp. 1 and 3, 3 SEP 2003. See also the fact that Pakistan would not extradite Agha Hasan Abedi to

Mechanisms for International Extradition

43

It is as much to our advantage that such criminals should be punished, and that we should get rid of them, as it is to that foreign State that they should be brought within the reach of its law.111

Civil law States, such as France and Switzerland, statutorily provide for extradition when no treaty exists; the statutes are expressly stated to be subsidiary to any treaty,112 such that the statute can only apply in the absence of a general international arrangement. Whilst Article 1 of the Law of 10 March 1927 provides that it applies to points not regulated by the treaties, such a provision cannot override the provisions of the Treaty. . . .113

Nonetheless, this combination of treaties and domestic legislation does not create a duty to extradite as Grotius envisaged, because it merely empowers France to act, it does not impose an obligation to act. Common law States tended to require some more formalised arrangement between the requesting and requested States.114 However, several States have now adopted legislation to permit ad hoc extradition when no arrangement already exists.115 Usually in these circumstances, the requested State demands greater safeguards for the human rights of the fugitive.116 The one remaining case concerns extradition to and from an entity that falls under the international administration, such as Kosovo.117 The United Nations

111

112

113 114

115

116 117

Abu Dhabi because there was no treaty (The Guardian p. 14, 15 JUL 1994), nor to the United States because there were not, at that time, good relations between the two States. Royal Commission on Extradition 1878, C 2039, and PARRY, BRITISH DIGEST OF INTERNATIONAL LAW, vol. 6, at pp. 805–6 (1965). See also, Canada’s submission to the Human Rights Committee in Kindler v Canada, Communication No. 470/1991, 14 HRLJ 307 at para. 8.2 (1993). See the French Law of 10 March 1927 and Blakesley, The Practice of Extradition from Antiquity to Modern France and the United States: a Brief History, 4 B.C. INT’L & COMP. L REV.39 at pp. 53–55; see also the Swiss agreement of 1980 – 20 INT.LEG.MAT.1339 (1981). Croissant, 74 INT’L L REP.505 at 509 (1978). Valentine v United States, ex rel. Neidecker, 299 US 5 at 9. See the problem for the Republic of Ireland in the return of the ‘Colombia Three’ who escaped from Bogotá after an appeal court reversed their acquittal for training FARC guerrillas – The Guardian p. 10, 6 AUG 2005; p. 7, 9 AUG 2005; p. 5, 19 AUG 2005: BBC News website 4128568.stm, 2005/08/07 02:55:01; 4164614.stm, 2005/08/19, 06:55:43. E.g. Canada (see The Guardian vis à vis China, p. 19, 29 NOV 2000), the United Kingdom and Australia. The United States seems more than willing to return persons to States with which it has no extradition relations. In many cases, as will be considered below in Chapter Six, this is irregular rendition (sometimes called Extraordinary Rendition where it concerns alleged terrorists). However, there are cases where the rendition seems to be formalised – see The Guardian p. 16, 17 APR 2004. While it would seem that US-Pakistan rendition is ad hoc, there is an argument that since Article 14 of the Anglo-US Extradition treaty of 1931 (47 US Statutes At Large 2122) applied it to “Imperial India”, which incorporated Pakistan prior to independence in 1947, then subject to rules on State succession, the 1931 treaty should still apply. See Re Bachnofer, 28 INT’L L REP.322 (S.Ct Colombia, 1963). See UNSC Res.1244 (1999). The sovereignty and territorial integrity of the then Federal Republic of Yugoslavia (now, Serbia and Montenegro) was reafﬁrmed.

44

Chapter 2

Mission in Kosovo (UNMIK) transitional administration took over the government of Kosovo. In theory, a State with extradition relations with Belgrade could have sought the surrender of someone in Kosovo, on the basis that Belgrade would seek the co-operation of UNMIK. However, in practice requests would be made direct to UNMIK despite the fact that neither UNMIK nor the UN itself had any extradition relations with any State. The whole process was irregular and should not be seen as a form of ad hoc extradition, even though court proceedings took place.118

2.4 Summary In conclusion, it should come as no surprise that extradition arrangements are very varied as regards form. At one extreme are the multilateral regional conventions, while at the other lie the ad hoc arrangements designed to ensure that the fugitive does not escape justice even if there are no permanent extradition relations between the two States. As between the States negotiating the arrangement, the emphasis will always be on providing mutual assistance in criminal matters, rather than the humanitarian protection of the fugitive. Nevertheless, the very fact that States choose with which other States they will establish extradition relations guarantees the fugitive’s rights to some small degree; States will only extradite where the system of justice in the requesting State meets whatever standards the requested State deems necessary.

3. Transfer to International Criminal Tribunals The establishment of ad hoc tribunals for the Former Yugoslavia and Rwanda, the International Criminal Court and the Special Court for Sierra Leone119 mean that there is now an additional mechanism for dealing with certain types of transnational fugitive offender.120 The issues raised cut across the whole of international law’s response to international crime, but transfer to the Tribunals and Courts encapsulates several, while others will be discussed in Chapter 7. 118

119

120

See the unreported decision of the Gjilan District Court (PHH Nr 2/2001) refusing a request from Rwanda for a UN worker due to concerns about the violation of his human rights if he were to be surrendered – copy with the author. An arrangement was made with Albania because several Albanian criminals sought refuge in Kosovo, although the legality of such agreements is open to question – see BBC 29/02/2000 10:10:23, EU1-ALBANIA-UNMIK. This hybrid Tribunal was established under a treaty between the United Nations and the Sierra Leonean government. The agreement was signed in January 2002 and was ratiﬁed by the Sierra Leonean government in March 2002. The Statute of the SCSL was annexed to the agreement. Supplement to the Sierra Leone Gazette Vol. CXXX. No. II, 7 March 2002, The Special Court Agreement, 2002, Ratiﬁcation Act, 2002 – see http://www.sc-sl.org/documents.html. Transfer by third States is dealt with in Rule 8(c) of the Rules of Procedure and Evidence. For non-legal issues, see Forsythe, International Criminal Courts: A Political View, 15 NQHR 5 (1997).

Mechanisms for International Extradition

45

The International Criminal Tribunal for the Former Yugoslavia (ICTY)121 and that for Rwanda (ICTR)122 were established by the Security Council. Following the decision in Tadic,123 it is clear that the Security Council has jurisdiction to establish such bodies. Under Article 41 of Chapter VII of the UN Charter, the Security Council “may decide what measures . . . are to be employed to give effect to its decisions” to maintain or restore international peace and security. The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace and security in the former Yugoslavia124

The constitutive Statutes of ICTY and ICTR provide that an accused person shall be ‘surrendered or transferred’ to the Tribunal – there is no reference to ‘extradition’ as the means of bringing the person to trial.125 Necessarily, the rules of extradition law are inapplicable in so far as they are not expressly incorporated within the Statutes, Rules or domestic implementing legislation, or are part of customary international law. For instance, it is legislated that trials following transfer must be fair126 and, if it is now part of custom that transfer should not take place if the

121

122

123

124 125

126

The Statute of Tribunal was presented to the Security Council in The Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (hereinafter, Report), 32 INT.LEG.MAT.1159 (1993). The Statute was adopted by the Security Council in Resolution 827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993). The Rules of Procedure and Evidence (hereinafter, Rules) are now at Revision 34 – IT/32/Rev.34 (http://www.un.org/icty/index.html). UNSC Res.935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994). Rules of Procedure and Evidence, ITR/3/Rev.1 (1995), entry into force 29 June 1995, revised 21 May 2005 (http://www.ictr.org/). Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No. IT-94-1-AR72 (1995), per Cassese J., at paras. 9–48. Tadic, supra n123, para. 38. See Gallant, Securing the presence of Defendants before the International Tribunal for the Former Yugoslavia: Breaking with Extradition, 5 CRIM LF 557 (1994). See also, Naletili,c v Croatia App No. 51891/99, European Court of Human Rights (Fourth Section) 4 May 2000, where the Court held transfer was not “extradition”, but “surrender” and declared the application inadmissible – however, the reasoning of the European Court of Human Rights seems a little thin on this point. Rule 58 of the Rwandan and Yugoslav Rules, supra nn121 and 122, state that the Statutes take precedence over any legal impediment in domestic extradition law or extradition treaties. The FCO Commentary, infra n139, states that the United Kingdom rules are based on the Backing of Warrants (Republic of Ireland) Act 1965, supra. See Articles 20 and 21 of the Yugoslav Statute, supra n121, and Articles 19 and 20 of the Rwanda Statute, supra n122. And see, Rwandan and Yugoslav Rule 95, Evidence Obtained by Means Contrary to Internationally Protected Human Rights No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. See also, Naletili,c v Croatia, European Court of Human Rights, supra n125.

46

Chapter 2

accused might face capital punishment,127 the death penalty is not available.128 On the other hand, under Rule 103 of the Rules of Evidence, one of the places where a person convicted before the Rwanda Tribunal can be imprisoned is a Rwandan gaol, not noted by Amnesty International129 as fulﬁlling general human rights guarantees, a normal condition in modern extradition treaties – one doubts, though, whether the Tribunal would order imprisonment in a Rwandan gaol before conditions improve. In addition, however, there is no rule of specialty before the Yugoslav or Rwandan Tribunals, although given their limited competence as regards listed crimes, that omission is unlikely to be of signiﬁcance.130 The Prosecutor shall initiate investigations, either ex ofﬁcio or on the basis of information received from any source. To facilitate a transfer, an indictment must be issued by the Prosecutor. Article 18.4 – Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.131

If the judge of the Trial Chamber is satisﬁed that a prima facie case has been established, he shall conﬁrm the indictment and issue such orders for the surrender or transfer of persons.132 Thus, the trigger mechanism for each tribunal is at the 127

128 129

130

131 132

See Fidan, French Conseil d’Etat, 100 INT’L L REP.662 (1987), and Aylor, French Conseil d’Etat, 100 INT’L L REP.664 (1993), which both hold that it would be contrary to French ordre public to extradite someone to face the death penalty, but there would appear to be no principle of customary international law to that effect – Viaux-Peccate, District Court of The Hague, 74 INT’L L REP.456 at 457 (1978). Article 24, Yugoslav Statute, supra n121; Article 23, Rwanda Statute, supra n122. See Amnesty International, RWANDA Human rights overlooked in mass repatriation, esp. p. 15, AI Index AFR 47/02/97, 14 January 1997. See Rwandan and Yugoslav Rule 50, supra nn121 and 122. Cf. Article 55, Statute of the International Criminal Court, infra n144. Yugoslav Statute, supra n121. Article 17.4, Rwanda Statute is identical. Article 19 Yugoslav, Article 18 Rwanda Statutes. Under Rule 11 bis, the ICTY can order a State to transfer an accused to another State with jurisdiction if it defers: “Rule 11 bis Referral of the Indictment to Another Court (A) After an indictment has been conﬁrmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State. .... (E) The Referral Bench may issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred to trial. (Adopted 12 Nov 1997. Revised 30 Sept 2002, amended 10 June 2004 and 11 Feb 2005).”

Mechanisms for International Extradition

47

initiative of the Prosecutor’s ofﬁce who shall “act independently as a separate organ of the International Tribunal”.133 Although there is concurrent jurisdiction between the International Tribunal and national courts over serious violations of international humanitarian law, States are obliged to give primacy to the Tribunal for prosecutions.134 The decision in Tadic135 upholds the right of the International Tribunal to formally request the transfer of the accused at any stage in any domestic proceedings. Article 29 of the Yugoslav Statute136 provides that States shall co-operate with the International Tribunal in the prosecution of persons accused of serious violations of international humanitarian law and that States shall comply with an order of the Trial Chamber without undue delay for the surrender or the transfer of the accused to the International Tribunal. Thus, given that the Tribunal was established under Chapter VII of the UN Charter, States are obliged to fulﬁl their obligations as set out in Article 29 of the Statute under Articles 48 and 49 of the Charter137 – the continued freedom of KaradÏzi,c

133

134

135

136

137

Article 16.2 Yugoslav Statute, Article 15.2 Rwanda Statute. See also Article 18, Yugoslav Statute, Article 17 Rwanda Statute. Article 9, Yugoslav Statute, Article 8, Rwanda Statute. See Gallant, supra n125, at pp. 561–62, 564–65, 569 and 586–87. Supra n123, per Cassese J., at paras. 49–64. Cf. Albright, UN. Doc.S/PV.3217 at p. 16 (25 May 1993). With respect to surrender by states in the region, see for example, Croatia to the ICTY – The Guardian p. 8, 29 APR 1997; p. 16, 7 JUL 2001; p. 19, 14 JUL 2001; p. 17, 26 JUL 2001; p. 14, 14 JUN 2005. The election of President Kostunica of the then Federal Republic of Yugoslavia led to Belgrade recognising it needed a law for surrender to The Hague – The Guardian p. 12, 6 JUN 2001; see also, The Guardian p. 11, 1 APR 2002; p. 13, 2 APR 2002; p. 14, 30 OCT 2003; p. 18, 27 DEC 2003; p. 13, 12 JUL 2004. The ﬁrst ever surrender by Republika Srpska was in 2005 – The Guardian p. 13, 17 JAN 2005. On the other hand, Prime Minister Ramush Haradinaj of Kosovo voluntarily surrendered to the ICTY – The Guardian p. 15, 9 MAR 2005; pp. 16 and 24, 11 MAR 2005. Other States are more co-operative: see the case of the Bosnian Serb arrested in Vienna, The Guardian p. 2, 26 AUG 1999. Cf. Russia – The Guardian p. 16, 15 MAR 2005. Viz. Article 28, Rwanda Statute – Belgium’s surrender to the ICTR of two former Mayors, The Times 12 NOV 1996. Kenya also surrendered suspects to the ICTR – The Guardian p. 14, 22 OCT 2001; the Rwanda-DRC Peace Treaty provided for Kinshasa to surrender suspects to Arusha – The Guardian p. 13, 31 JUL 2002; and see p. 19, 2 OCT 2002. Angola also transferred a Rwandan military leader to the ICTR – The Guardian p. 13, 16 AUG 2002; p. 12, 20 AUG 2002; p. 14, 22 AUG 2002. Cf. Allegations that the Vatican protected genocidaires – The Guardian p. 22, 21 JUL 2001; Italy also failed to hand over a Rwandan priest to the ICTR – The Guardian p. 12, 16 JUL 2001. Occasionally S-FOR will apprehend those indicted, although practice is not uniform throughout the sectors controlled by different national contingents – The Guardian pp. 1 and 14, 11 JUL 1997; p. 14, 12 JUL 1997; p. 11, 19 DEC 1997; p. 15, 14 JUN 2002; p. 16, 2 APR 2004. In Prosecutor v Nikoli,c, IT-94-2AR73, (Appeals Chamber, 5 JUN 2003), the ICTY held that where the accused had been abducted by private persons and handed over to SFOR, there was no need for it to divest itself of jurisdiction – paragraphs 31–33. See also, Rules 56–59, supra nn121 and 122. To the extent that this represents an interference in a State’s sovereignty, Article 2.7 of the Charter is inapplicable because the Tribunal was established under Chapter VII. Whether co-operation ﬂows from the Chapter VII obligations or economic pressure from Washington and/or Brussels is also open to question – The Guardian p. 12, 7 MAR 2005; p. 12, 17 MAR 2005; p. 16, 18 MAR 2005.

48

Chapter 2

and Mladi,c, however, provides a grim note of reality.138 Where a State cannot comply,139 then it shall notify the Registrar; if no report is forthcoming within a reasonable time, then this shall be deemed a failure to execute and may lead the President of the Tribunal to notify the Security Council.140 However, were a State to refuse to comply with a request for surrender because it was already prosecuting the accused and, indeed, went on to convict or acquit,141 it is arguable that either a notiﬁcation to the Security Council should not take place or the Security Council should not act upon any notiﬁcation – such would reﬂect the concurrent jurisdiction to prosecute in Article 9 of the Statute and the exceptions to the non bis in idem rule in Article 10.142 Article 10.2 – A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if: (a) the act for which he or she was tried was characterized as an ordinary crime;143 or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.

138 139

140 141

142

143

See Hawton, KaradÏzi,c ‘hiding in Montenegro’, BBC News, 4644949.stm, 2005/07/02 19:29:16. Austria, Australia, Belgium, Bosnia-Herzegovina, Croatia, Denmark, Finland, France, Germany, Greece, Hungary, Italy, the Netherlands, New Zealand, Norway, Romania, Spain, Sweden, Switzerland, the United States and the United Kingdom have put in place legislation to give effect to the Statutes and Rules – necessarily, by date of publication, this information may well be incomplete. For the United Kingdom, see United Nations (International Tribunal) (Former Yugoslavia) Order 1996 (SI 1996 No. 716) and United Nations (International Tribunal) (Rwanda) Order 1996 (SI 1996 No. 1296), both made under s1 United Nations Act 1946 (see also, SI 1997 No. 1752; SI 1998 No. 1755; SI 2000 Nos. 1342 and 3243; SI 2001 Nos. 412 and 2561). A commentary by the Foreign and Commonwealth Ofﬁce to the Joint Committee on Statutory Instruments may be found in Supplement Three to Amnesty International’s, International Criminal Tribunals: Handbook for Government Co-operation, AI Index: IOR 40/07–10/96, August 1996; and Warbrick, Co-operation with the International Criminal Tribunal for Yugoslavia, 45 INT’L & COMP.LQ 947 (1996), cf. Fox, The Objections to the Transfer of Criminal Jurisdiction to the UN Tribunal, 46 INT’L & COMP. LQ 434 (1997). For the USA, see Kushen and Harris, Surrender of Fugitives by the United States to the War Crimes Tribunals for Yugoslavia and Rwanda, 90 AM.J INT’L L 510 (1996); Godinho, The Surrender Agreements between the US and the ICTY and ICTR: A Critical View, 1 JICJ 502 (2003); Kushen, The Surrender Agreements between the US and the ICTY and ICTR: the American View, 1 JICJ 517 (2003). Rule 59, supra nn121 and 122. Possibly because it turned out that the accused was not the person he was believed to be – see the right of a court in the United Kingdom to refuse to transfer an accused where it ﬁnds, inter alia, that he is not the person named or described in the warrant – s6(5)(b), United Nations (International Tribunal) (Former Yugoslavia) Order 1996 (SI 1996 No. 716). Sir David Hannay in the Security Council went so far as to say that Article 9 only applied in full to courts in the former Yugoslavia, while primacy would only be asserted with regard to courts elsewhere in the situations envisaged in Article 10.2. – supra n135, at p. 18. Cf. Tadic, supra n123, per Cassese J., at para. 52. Author’s footnote. Would an indictment listing twenty murders, rather than a breach of the laws and customs of war, be an “ordinary crime”?

Mechanisms for International Extradition

49

The maintenance of peace and security can be achieved through a domestic trial, though ordinarily where the Tribunal requests a transfer of proceedings that should be effected. If it were the case that the domestic trial was a sham, the Security Council could impose sanctions and, if surrender does ever take place, then Article 10.2 does not preclude trial before the ICTY. The International Criminal Court is different from the two ad hoc tribunals. The latter were established by the Security Council under Chapter VII, while the Rome Statute emerged from international conclave. The Statute of the International Criminal Court144 was promulgated on 17 July 1998.145 It came into force on 2 July 2002. As might be expected of a treaty drawn up by States, it gives priority to national courts under the principle of complementarity.146 It is a court of last resort and its jurisdiction is severely limited under Articles 12–15: while the Security Council can refer any case under Chapter VII that falls within the list of crimes in Article 5, a State Party and the Prosecutor proprio motu can only initiate investigations if the State in which the crime took place or of which the accused is a national is party to the Rome Statute. Even if the Court does have jurisdiction, the principle of complementarity shall prevail and the case shall be declared inadmissible where a State with jurisdiction is, for instance, investigating or prosecuting unless the State is unwilling or unable genuinely to investigate or prosecute (Article 17). Under Article 18, if any case is referred by a State party or investigated proprio motu, the Prosecutor has to inform all States parties and any other State that might be presumed to have jurisdiction and any such State might then take over the investigation of nationals or others within its jurisdiction. That having been said, Article 86 provides for a general obligation to co-operate and Article 88 requires States to ensure that they have domestic measures in place to allow for full co-operation.147 Surrender to the Court is dealt with under Article 89: 89.1 The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in Article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

144

145

146 147

Done at Rome, 17 July 1998, 37 INT.LEG.MAT.999 (1998) – as corrected by the procés-verbaux. See CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002. The very day that this book’s predecessor, TRANSNATIONAL FUGITIVE OFFENDERS IN INTERNATIONAL LAW, was published, incorrectly predicting (p. xviii) that the Rome Conference would fail and the States would have to regather in December 1998! See paragraph 10 of the Preamble, and Articles 1 and 10. See generally, 2 JICJ 133–210 (2004), publishing the Symposium on National Implementation of the International Criminal Court Statute. Wilkitzki, The German Law on Co-operation with the International Criminal Court, 2 ICLR 195 (2002).

50

Chapter 2 2 Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in Article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.”148

As well as ne bis in idem, the Rome Statute provides for the presumption of innocence and other rights for the accused in Articles 66 and 67.149 The Ofﬁce of the Prosecutor has, at the time of writing,150 to bring its ﬁrst case, although the Security Council has referred the situation in Darfur,151 the governments of Uganda and the Democratic Republic of Congo have referred situations from their countries,152 and La Fédération Internationale des ligues de Droits de l’Homme (FIDH), along with two local organisations, has referred the activities of the paramilitaries and equally asked for an inquiry into the activities of the government in Colombia.153

4. The Effects of War and State Succession The ﬁnal topic for consideration concerns, on the one hand, how extradition relations might be affected by the outbreak of war and, on the other, whether a State might succeed to the treaties of another State of which it is the political successor or of which it was a colony. International law makes provision for the termination or suspension of a treaty if there has been a fundamental change in circumstances since its conclusion.154 The outbreak of war between the parties to an extradition treaty could constitute such a change. 148

149

150 151

152

153 154

Paragraph 3 provides for the necessary proof from the International Criminal Court for surrender to be authorized by the State: 3(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; See also Chapter 11 §II of the RPE. The International Criminal Court cannot impose the death penalty (Article 77) and the rule of specialty (Article 101) – See Chapter Four, below. July 2005. UNSC Res.1593 (2005), 31 MAR 2005. See also Report of the prosecutor, 29 June 2005, http://www.icc-cpi.int/library/cases/ICC_Darfur_UNSC_Report_29–06–05_EN.pdf. Uganda 29 January 2004; DRC 19 April 2004. See http://www.icc-cpi.int/cases.html. The government of the Central African Republic referred a situation in its own country on 6 January 2005, but so far (July 2005) it has not been followed up. See http://www.ﬁdh.org/article.php3?id_article=2500, 29 June 2005. Article 62, Vienna Convention on the Law of Treaties, 8 INT.LEG.MAT.679 (1969).

Mechanisms for International Extradition

51

The court in LoDolce155 held that while enemy forces are occupying part of a State, it lost its jurisdiction over offences committed at that time. Thus, while murder and robbery were crimes for which extradition could be granted under the U.S.Italian treaty, the United States refused to surrender the fugitive because the crimes occurred in 1944 when Italy exercised no effective control over its own territory. Chandler v United States156 avoided the issue of whether war abrogated or merely suspended the U.S.-German Extradition Treaty of 1930, but in Argento v Horn157 the court was faced with the same issue in relation to the U.S.-Italian treaty and held, having regard to the practice and statements of the two States since the end of the war, especially the 1947 Peace Treaty, that the extradition treaty had merely been suspended during the conﬂict. In R v Meroni,158 it was held that, although not speciﬁcally referred to in the Anglo-Italian Peace Treaty of 1948, the extradition treaty between Italy and the United Kingdom was revived with respect to the Seychelles, as well, at the time, a colony of the United Kingdom. This view concerning extradition treaties would seem to be the dominant one now, although the German Democratic Republic was not treated as the successor to the old Germany in relation to pre-war extradition treaties.159 As for State succession to extradition treaties, in the past it would have covered the situation where a new State was formed on the break-up of an empire or as part of a peace settlement. Such was the situation in D.C. v Public Prosecutor,160 where the Dutch Supreme Court held that the Socialist Federal Republic of Yugoslavia was the successor to the Serbo-Dutch Extradition Treaty of 1896. Holding there was no rule as to whether States did succeed and referring to statements made with respect to the Kingdom of Yugoslavia in 1923,161 the court found that the fact that Yugoslavia had a different constitution and was not conﬁned to the same territorial boundaries as Serbia did not matter when compared with State practice and the intentions of the parties. In Arnbjornsdottir-Mendler v United States,162 it was held that Iceland’s independence from Denmark in 1918 and then becoming a republic in 1944 when it stopped recognising the King of Denmark, did not abrogate the 1902 treaty of extradition between the United States and Denmark. This treaty had been speciﬁcally extended at that time to Iceland and, as part of a general provision on treaties in the Icelandic declaration of independence, the Act of Union, was deemed to have

155 156 157 158 159

160 161 162

In re LoDolce, 18 INT’L L REP.318 (U.S.Dist.Ct 1952). 171 F.2d 921 (1948). 241 F.2d 258 at 262 (1957). 91 INT’L L REP.386 (Seychelles Supreme Court). See SHEARER, supra n29, at p. 45, and Schmid, supra n78. On State succession and the two Germanies, see Espionage Prosecution Case 94 INT’L L REP.68 (1991). 73 INT’L L REP.38 (1972). Supra n160, at 39–41. 721 F.2d 679 at 682 (1983).

52

Chapter 2

continued in force after 1918. The court held that since independence “was accompanied by neither political nor geographical upheavals”, there was sufﬁcient unity for Iceland to succeed. However, with respect to new States, the starting point ought now to be the 1978 Vienna Convention on Succession of States in Respect of Treaties.163 State succession is now a matter of concern when a former dependency, territory or colony gains its independence and, under Article 16, the new State starts with a ‘clean slate’.164 Often new States will adopt the former parent State’s extradition treaties, but it is not an automatic process and there is no rule of customary international law that may be prayed in aid to that effect.165 In M v Federal Department of Justice and Police,166 the Swiss Federal Tribunal, referring to the work of the International Law Commission which eventually led to the 1978 Vienna Convention, held that having regard to practice between South Africa and Switzerland from 1956 to 1976, as in D.C. above, and an exchange of notes, South Africa had succeeded to the United Kingdom’s extradition treaty with Switzerland.167 The Court of Appeal of Sierra Leone in Lansana v R168 found that Sierra Leone had succeeded to the Anglo-Liberian Extradition Treaty of 1894 due to a mutual exchange of letters between the two countries and Sierra Leone’s domestic extradition legislation. Moreover, in United States v Tuttle,169 the Court of Appeals for the Ninth Circuit held that the Bahamas succeeded to the 1931 AngloU.S. Extradition Treaty, even though that treaty had been superseded by a subsequent treaty between the United Kingdom and the United States. On the other hand, when Rhodesia, as it then was, made a unilateral declaration of independence in 1965 from the United Kingdom, it did not succeed to former extradition treaties according to the Supreme Court for the Natal Provincial Division of South Africa. In The State v Oosthuizen,170 the court held that South Africa had not expressly or tacitly recognised Ian Smith’s Rhodesia and that it was not the same State as had concluded the extradition arrangement a few months before it unilaterally declared independence. Therefore, extradition could not be granted thereunder. Finally on State succession, some cases arose challenging extradition to Hong Kong because of its return to the Peoples’ Republic of China on 30 June 1997. In

163 164

165

166 167

168 169 170

72 AM.J INT’L L 971 (1978). Cf. TAMMES, INTERNATIONAL PUBLIEKRECHT, Chapter on State Succession, (1966), who held that the “clean slate” theory is “somewhat mitigated in practice to ensure continuity in the international legal order”. (Cited in D.C., supra n160). See, Heeralall v Commissioner of Prisons, and Republic of France v Heeralall and the AttorneyGeneral (Mauritius Supreme Court) 107 INT’L L REP.168 at 173–74, 30 MAR 1992 and 30 JUL 1993. 75 INT’L L REP.107 (1979). See also, Chua Han Mow v Superintendent of Pudu Prison, 87 INT’L L REP.206 (Malaysia Fed. Ct). 70 INT’L L REP.2 (1971). 966 F.2d 1316 (1992). 68 INT’L L REP.3 at 4–5 (1976).

Mechanisms for International Extradition

53

many cases, the argument was based on the human rights record of the PRC,171 and this was despite the fact that the British government had said that human rights should not be an issue because the Chinese and British agreed a Joint Declaration in 1984172 on the preservation of Hong Kong’s way of life for ﬁfty years after transfer. In one United States case,173 however, the argument did not turn on human rights in the PRC, but, in part, on the fact that the extradition agreement was with Hong Kong, not with the PRC, and that the Senate cannot have intended him to be prosecuted and punished in the PRC. The Court of Appeals held that it was the Executive which had to decide political questions on the basis of the rule of non-inquiry, but pointed to the U.S.-Hong Kong Special Administrative Region Surrender of Fugitive Offenders Agreement of 20 December 1996, then before Senate,174 as evidence that extradition would continue after 1 July 1997. What is certain is that Hong Kong did not bring with it all the extradition arrangements which were extended to it in British legislation while under British rule. To that end, the proto-HKSAR negotiated new agreements for after the handover.175 The Australian High Court has held that it does not matter that Australia has no extradition relations with the PRC, it can still extradite to the HKSAR which constituted a “territory” for the purposes of s5(b)(ii) of the Australian Extradition Act (Cth) 1988.176 The United States District Court in The Matter of Cheung177 held that extradition to the HKSAR was not possible because it was not a State. However, on appeal, the Court of Appeals held that extradition was not limited to States, it could be with sub-sovereign entities, noting that the United States domestic legislation referred to foreign governments, not States.178 In conclusion, extradition treaties are capable of being revived after war and new States will usually succeed to the treaties of their former parent States, although there is no rule of international law to that effect. Treaties will continue to be predominant when extradition relations are being established, but in practice a wide variety of arrangements will permit the surrender of a fugitive. The trend towards allowing extradition when no arrangement at all exists, while promoting international comity, does, though, raise concern for the protection of the fugitive’s human rights.

171

172 173 174 175

176

177 178

R v Secretary of State for the Home Department, ex parte Launder The Times, 29 October 1996, reversed by the House of Lords, [1997] 1 WLR 839. UKTS 26 (1985). USA v Lui Kin-Hong, 110 F.3d 103 (1997). 143 Cong.Rec.S1846 (1997). In Re Chong Bing Keung (No.2) 122 INT’L L REP.601 at 615–18, the HKSAR Court of Appeal held that courts cannot go behind the validity of the treaty. Attorney-General (Commonwealth) v Tse Chu-Fai et al. paras. 44–48, 114 INT’L L REP.383, at 398–99, (1998). 122 INT’L L REP.659 (1999). Cheung v USA 213 F.3d 82 (2000) at 89 – see 18 USC 3184. It was also held that treaties should be interpreted ﬂexibly.

Chapter 3 Effecting the Response through International Criminal Procedures 1. Introduction The developments in the last ﬁfteen years at the international level, with the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, the Special Court for Sierra Leone and the internationalized courts may have stolen all the headlines, but most people committing international crimes will still be returned through extradition law to face trial before a domestic court with jurisdiction to prosecute. Even if they are being surrendered to a supranational court, the mechanisms in place to allow that are based on extradition law. Extradition may be viewed as a mere process by which transnational fugitive offenders are returned to face trial before a competent court. As subsequent chapters will reveal, there are substantive rules within extradition law which provide the transnational fugitive offender with fundamental guarantees of his human rights. Some of these transfer over to the other mechanisms utilised against transnational fugitive offenders, but not all. Moreover, the procedure of extradition is itself complex and little understood and it is in that context that the fugitive’s substantive rights operate. One cannot understand the scope of the protection without regard to its procedural context.

Effecting the Response through International Criminal Procedures

55

Furthermore, procedural extradition must be placed within the wider perspective of mutual assistance in criminal matters of which it is but a part. The aim of this chapter is, on the one hand, to examine the procedure by which an extradition request is processed through the system in order to analyse critically its shortcomings and propose any necessary improvements and, on the other, to establish the framework in which the transnational fugitive offender’s protections are put into effect.

2. Mutual Assistance in Criminal Matters1 Extradition is part of a wider network of systems of co-operation in law enforcement; to focus solely on extradition law would be to ignore several other mechanisms utilised by States to ensure the prosecution of transnational fugitive offenders. Mutual legal assistance treaties are mainly used to obtain evidence from outside the jurisdiction, but mutual assistance can also be seen in broader forms of co-operation when meeting the problem of crimes or criminals that cross frontiers. These broader forms exist on three levels; micro, mezzo and macro.2 At the micro level, one is dealing with individual police forces working together to deal with trans-border crimes.3 The 1990 campaign by the Provisional IRA in continental Europe led to increased contact between the Metropolitan Police European Liaison Service and its counterparts in the Dutch, Belgian and German security services.4 The ever growing threat from the trade in drugs, and the associated money laundering, has led to worldwide assistance between police forces,5 especially in Europe.6 To take the ﬁght against drugs even further, the European 1

2

3

4 5 6

See generally, McCLEAN, INTERNATIONAL CO-OPERATION IN CIVIL AND CRIMINAL MATTERS (2002). The terms, but not their content, are taken from the evidence submitted by the Centre for the Study of Public Order to HOME AFFAIRS SELECT COMMITTEE, SEVENTH REPORT, PRACTICAL POLICE CO-OPERATION IN THE EUROPEAN COMMUNITY, vol. 2, pp. 181 et seq, HCP 363 (1989–90). Hereinafter, HCP-I or HCP-II. See also, Benyon, Policing the European Union: the Changing Basis of Co-operation on Law Enforcement, 70 INT’L AFF. 497 (1994). A direct comparison can be drawn with federal States where policing is a matter for the regional units therein. Despite the fact that England is a unitary State, it has discrete regional police forces; however, Scotland and Northern Ireland are separate legal systems within the United Kingdom – see Walker, Internal Cross-Border Policing within the United Kingdom: the High Road or the Low Road to Effective Co-operation?, 56 CLJ 114 (1997). In 2001, before Lithuania joined the European Union, the Spanish and Lithuanian governments established a police co-operation treaty because of a crime wave in Spain linked to smuggled Lithuanians – see Baltic News Service, 17 APR 2001. HCP-I at para. 11, supra n2. See The Guardian2 p. 7, 10 MAR 1993; p. 3, 11 JAN 1994; p. 10; 20 APR 2000; p. 6, 22 OCT 2001. See http://europa.eu.int/comm/justice_home/fsj/police/fsj_police_intro_en.htm (checked 20 July 2005). The EU has also established liaison ofﬁcers – see Council Decision 2003/170/JHA of 27 February 2003, on the common use of liaison ofﬁcers posted abroad by the law enforcement agencies of the Member States, OJ L 67/27, 12 MAR 2003.

56

Chapter 3

Union established the European Drug Unit in The Hague.7 This was superseded by EUROPOL, discussed below.8 This low-level contact is more formalised at the mezzo stage. One example is the work of INTERPOL, the International Criminal Police Organisation, “the principal channel for practical co-operation between police forces throughout the world, . . .”.9 INTERPOL is not an investigative institution, but rather an administrative organisation the objective of which is to improve the speed and efﬁciency of inquiries between police forces; it is a channel of communication and, as such, it is essentially a means of providing for mutual assistance in criminal matters.10 INTERPOL has over 180 members worldwide, although eighty per cent of its telecommunications trafﬁc is accounted for by European inquiries. It is organised into three tiers, the ﬁrst of which contains an executive committee and a general assembly of all members. However, the most pertinent for the purposes of mutual assistance is the second tier, the General Secretariat based at Lyon. Staffed in part by serving police ofﬁcers, the Secretariat is the part of INTERPOL that deals with requests for information and assistance from other police forces, which requests are transmitted to Lyon by the third tier, the National Central Bureaux (NCB) based in the member forces in each State. The procedures and practices of the Secretariat have been greatly improved since 1984, such that a request for information or assistance is, on average, answered within two hours.11 The obvious use of such facilities for the speedy arrest of a fugitive offender need not be spelt out.12 INTERPOL’s red ‘wanted’ notices, which contain details of the arrest warrant and the offence committed, are mainly used to track down wanted fugitive offenders and arrest them prior to a formal, diplomatic extradition request. They are an institutionalised part of extradition law within Europe and the Commonwealth with respect to the provisional arrest of fugitive criminals.13 Furthermore, the change in attitude within

7 8

9

10

11

12

13

At the mezzo level, the EU established the European Police Chiefs’ Task Force in 2000 – http://europa.eu.int/comm/justice_home/fsj/police/chief/printer/fsj_police_task_force_en.htm See Benyon, supra n2, at pp. 510–11. See http://europa.eu.int/comm/justice_home/fsj/police/printer/fsj_police_intro_en.htm (checked 20 July 2005). See http://www.interpol.int. The quotation is from HCP-I, at paras. 66 et seq and HCP-II at pp. 30–37, supra n2. See also, BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM: U.S. PROCEDURAL ASPECTS, in Ch. 16 by Grotenroth, (1988); hereinafter, BASSIOUNI, LEGAL RESPONSES. Founded in 1946, its objectives are set out in Art. 2 of its constitution. (a) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’. The overlap between international criminal law and procedure and human rights law is once again clearly established. Supra n2, at para. 70. As well, INTERPOL holds computerised records on criminals and their modus operandi. There is one case where a suspected forger was arrested in France one hour after the British NCB sent the information to INTERPOL; supra n2, at para. 71. Art. 16, European Convention on Extradition, 1957, ETS 24, 359 UNTS 273: Art. 4 London Scheme for Extradition Within the Commonwealth, incorporating the amendments agreed at

Effecting the Response through International Criminal Procedures

57

INTERPOL since 1984 concerning Article 3 of its constitution, which forbids its involvement in activities, inter alia, of a political nature, has meant that it is now prepared to facilitate inquiries into politically motivated terrorism outside the area of conﬂict. The role of INTERPOL, therefore, in combating all forms of cross-frontier crime cannot be underestimated, and the mezzo level of mutual assistance is likely to be extremely active, especially in relation to extradition requests. INTERPOL’s work at the mezzo level has now been supplemented by a variety of European responses to transnational fugitive offenders. This response was hardly surprising given that the European Union has made freedom of movement for all citizens of member States, including transnational fugitive offenders, very much easier and, given the large sums of money which it has at its disposal, it would be foolish to imagine that it would not be the object of serious major fraud.14 Mentioned above, Europol15 became fully operational on 1 July 1999. The Europol Convention of 1995 provides that: Article 1 Establishment 2. Europol shall liaise with a single national unit in each Member State, to be established or designated in accordance with Article 4. Article 2 Objective 1. The objective of Europol shall be, within the framework of cooperation between the Member States pursuant to Article K.1(9) of the Treaty on European Union, to improve, by means of the measures referred to in this Convention, the effectiveness and co-operation of the competent authorities in the Member States in preventing and combating terrorism, unlawful drug trafﬁcking and other serious forms of international crime where there are factual indications that an organized criminal structure is involved and two or more Member States are affected by the forms of crime in question in such a way as to require a common approach by the Member States owing to the scale, signiﬁcance and consequences of the offences concerned. 3. Europol’s competence as regards a form of crime or speciﬁc manifestations thereof shall cover both: (1) illegal money-laundering activities in connection with these forms of crime or speciﬁc manifestations thereof; (2) related criminal offences.16

14

15

16

Kingstown in November 2002 – (http://www.thecommonwealth.org/shared_asp_ﬁles/ uploadedﬁles/%7B56F55E5D-1882-4421-9CC1-71634DF17331%7D_London_Scheme.pdf) checked 20 July 2005. The Guardian p. 7, 24 APR 1997. The member States of the European Union have concluded a Convention on the protection of the European Communities’ Financial Interests, (1995 OJ C 316; Explanatory Report, 1997 OJ C 191) which tries to harmonize the practice of domestic laws aimed at dealing with fraud on the community. Article 5 provides with regard to extradition that nationals shall be extradited and that ﬁscal offences shall be extradition crimes. See also, the Protocol, 1996 OJ C 313. COUNCIL ACT of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Ofﬁce (Europol Convention), 1995 OJ C 316, 27/11/95. See also, http://www.europol.eu.int. Initially, Europol had a more limited role: Article 2.2 In order to achieve progressively the objective mentioned in paragraph 1, Europol shall initially act to prevent and combat unlawful drug trafﬁcking, trafﬁcking in nuclear and

58

Chapter 3

Once again, the European Union has eschewed the possibility of creating a supranational police force and is relying on liaison and co-ordination between national forces, as set out in Article 3. There is to be a ﬂow of information between national units and Europol. Unfortunately, the inherent anti-federal nature of criminal law within the European Union has meant that member States have retained a degree of discretion in relation to what information national units shall pass on to Europol.17 The restrictions are based on a State’s interpretation of its own national security interests or prejudicing an ongoing investigation. Given that the idea behind Europol is that it is to co-ordinate information between police forces within the European Union, it is hard to see why it was felt necessary to limit mutual assistance in this manner – it is hardly as if Europol is open to public scrutiny. If Europol evolved from EDU, it is of the same genus as the Schengen Convention structures.18 The Schengen system is more far-reaching, going beyond the remit of Europol. Originally, it was outside the European Union although its parties were all members of the EU. However, the Schengen Acquis19 under the Treaty of Amsterdam20 integrates Schengen into the European Union. The acquis deals, amongst other things, with police co-operation and judicial co-operation in criminal matters. Finally, the macro level of mutual assistance is concerned with inter-governmental contacts, whether formal or informal.21 This includes the series of formal

17

18

19

20

21

radioactive substances, illegal immigrant smuggling, trade in human beings and motor vehicle crime. Within two years at the latest following the entry into force of this Convention, Europol shall also deal with crimes committed or likely to be committed in the course of terrorist activities against life, limb, personal freedom or property. The Council, acting unanimously in accordance with the procedure laid down in Title VI of the Treaty on European Union, may decide to instruct Europol to deal with such terrorist activities before that period has expired. The Council, acting unanimously in accordance with the procedure laid down in Title VI of the Treaty on European Union, may decide to instruct Europol to deal with other forms of crime listed in the Annex to this Convention or speciﬁc manifestations thereof. Before acting, the Council shall instruct the Management Board to prepare its decision and in particular to set out the budgetary and stafﬁng implications for Europol. See now, http://www.europol.eu.int/index.asp?page=ataglance&language=. Europol Convention Article 4.5 Without prejudice to the exercise of the responsibilities incumbent upon Member States as set out in Article K.2 (2) of the Treaty on European Union, a national unit shall not be obliged in a particular case to supply the information and intelligence provided for . . . if this would mean: (1) harming essential national security interests; or (2) jeopardizing the success of a current investigation or the safety of individuals; (3) involving information pertaining to organizations or speciﬁc intelligence activities in the ﬁeld of State security. The Schengen Convention 1990, 30 INT.LEG.MAT.84 (1991); see Chapter 2. See also, MEIJERS, SCHENGEN, 2nd ed., 1992. See OJ of the EC 1, 22 SEP 2000, published as a result of Article 1(2) of Council Decision 1999/435/EC of 20 May 1999. In force, 1 May 1999. See now, the Consolidated Version of the Treaty Establishing the European Community, OJ C/325/33, 24 December 2002. The reach of transnational crime can be deduced by the gathering of representatives from over 140

Effecting the Response through International Criminal Procedures

59

mutual legal assistance conventions.22 The content of these conventions is primarily to do with the presentation of evidence from one State in the trial in the other State. Such gathering of evidence may well relate to extradition hearings and is considered below; however, they may also be seen as part of the armoury against transnational fugitive offenders, in general. The only point to note here about the conventions themselves is the sudden realization by common law States of their usefulness. In continental Europe, the 1959 Convention on Mutual Assistance in Criminal Matters23 has worked well for almost forty years, but the ﬁrst State of the Anglo-Saxon tradition to conclude a mutual assistance treaty was the U.S.A. in 1977 with Switzerland.24 Following on that initial success, the U.S.A. has agreed general treaties with, amongst others, Italy25 and Mexico,26 and a speciﬁc drug related agreement with the United Kingdom, the Cayman Islands and Canada.27 The United Kingdom was even slower off the mark, although it has now ratiﬁed the European Convention on Mutual Assistance in Criminal Matters and is party to the Commonwealth Scheme,28 while it, too, has drug speciﬁc treaties with about 140 other States.29 The European Union concluded an MLAT in 2000.30

22

23

24

25 26 27 28

29

30

countries under the auspices of the United Nations to discuss international measures to combat transnational fugitive offenders (The Guardian p. 8, 21 NOV 1994), and the meeting called by NATO of security and espionage services from over thirty countries, ranging from the United States, the United Kingdom and France to Uzbekistan and Albania (The Guardian p. 8, 25 NOV 1996). See Zagaris and Simonetti, Judicial Assistance under U.S. Bilateral Treaties, at pp. 219 et seq. (esp. pp. 226–7), of BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM: U.S. PROCEDURAL ASPECTS, 1988; Cameron, Mutual Assistance in Criminal Matters, 38 INT’L & COMP. LQ 954 (1989); COUNCIL OF EUROPE, EXTRATERRITORIAL CRIMINAL JURISDICTION at pp. 37–8 (1990); McClean, Mutual Assistance in Criminal Matters; The Commonwealth Scheme, 37 INT’L & COMP. LQ 177 (1988), and McCLEAN, supra n1. On the position in the Former Soviet Union, see GINSBURGS, THE SOVIET UNION AND INTERNATIONAL CO-OPERATION IN LEGAL MATTERS, 1994. ETS 30 (1959), in force 1962; Protocol, ETS 99 (1978). The Council of the European Union proposed in 1996 that as between member States of the EU, the Council of Europe Convention should be simpliﬁed through a draft Convention drawn up on the basis of Article K.3, to expedite its operation – 5978/96, 16 April 1996. 12 INT.LEG.MAT.916 (1973); 27 UST 2019, TIAS 8302. See also, subsequent understandings at 15 INT.LEG.MAT.283 (1976), 22 INT.LEG.MAT.1 (1983), 27 INT.LEG.MAT.480 (1988); and 33 INT.LEG.MAT.168 (1994). 23 INT.LEG.MAT.231 (1984). 27 INT.LEG.MAT.443 (1988). Cameron, supra n22. Commonwealth Scheme on Mutual Assistance in Criminal Matters, agreed at Harare 1986; see also McClean, supra n22. Art. 1 of the Scheme contains a very wide description of forms of assistance. See also, the British Criminal Justice (International Co-operation) Act 1990 and the Drug Trafﬁcking Act 1994 – the latter has led to agreements with over 140 countries and territories as at 1 January 1997, Drug Trafﬁcking Act 1994 (Designated Countries and Territories) Order 1996 (SI 1996 No 2880). See Convention established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union – OJ C 197/3 , 12 July 2000. See also, Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual

60

Chapter 3

To conclude, mutual assistance takes place on many levels, with greater or lesser degrees of formality. Extradition is a part of it and is also assisted by it. Mutual assistance is the wider context in which procedural extradition is founded. It also, however, reveals why extradition is inadequate on its own when considering transnational fugitive offenders. Furthermore, it is of growing importance with regard to the attempt to combat transnational crime as the sovereign, Westphalian State loses its solidity and there is increasing interdependence and a diffusion of borders, at least within an integrated Europe.31

3. Comparative Overview The object of this brief section is to outline the way an extradition request is processed, prior to considering in detail the nature of the hearing and the substantive matters the requesting State has to prove. Given that the general procedure is laid down in the international arrangements between States, even if in some cases the precise rules are set out in domestic statutes, then it is hardly surprising to ﬁnd that there is little difference between State practice on this issue, at least with regard to general extradition relations. Certain States with close geographical ties should be expected to have specialised agreements suited to their situation; examples include the systems in operation between the Benelux States,32 between Australia and New Zealand33 and between the twenty-ﬁve member States of the European Union. Concentrating, therefore, on the general systems in operation, the ﬁrst step in any extradition request is to inform the arresting authorities in the requested State, usually the police, of the fugitive’s presence. Treaties provide two means of achieving this communication: the ﬁrst comprises the formal request through diplomatic channels for the issuance of a warrant for the fugitive’s surrender. Such a request will be backed up by sufﬁcient evidence to convince the government department responsible for criminal matters and a member of the judiciary that arresting the fugitive and holding an extradition hearing is appropriate.34 Secondly, the requesting State may make an application direct to a judge for a warrant of arrest, known as a provisional warrant, to be issued. In the case of a provisional warrant, the judge

31 32

33 34

Assistance in Criminal Matters between the Member States of the European Union, OJ C 326/1, 21 November 2001. MacCormick, Beyond the Sovereign State, 56 MOD.L REV.1 (1993). Treaty on Extradition and Mutual Assistance in Criminal Matters, 27 June 1962, and Protocol, 11 May 1974. See Part III of the Australian Extradition Act 1988 and New Zealand Extradition Act 1999, Part 4. Under the Extradition Act 2003, the Secretary of State has no role with Category 1 States, but has a minimal role in relation to Category 2 States – s70 (but see also, s126 regarding competing requests).

Effecting the Response through International Criminal Procedures

61

is usually obliged to keep the responsible government department informed of the outcome of the issuance of the warrant.35 Where requests are received from more than one State, provision may be made in the treaty,36 but, if not, the requested State will enjoy a large degree of discretion. In C v Federal Police Department,37 the Swiss Federal Tribunal took account of the gravity of the offences in both requesting States and the fact that if surrendered to Italy he could not, as an Italian national, be subsequently extradited to Belgium, whereas re-extradition to Italy from Belgium would be possible.38 Once arrested, it would be rare for the fugitive to be granted bail before the extradition hearing, leading to him having to spend long periods in pre-trial custody.39

35

36 37 38

39

See Art. 12 of the French Loi du 10 Mars 1927 (the French statute is superseded by any selfexecuting treaty, but it provides a useful, generalised summary of French law and practice); Arts. 8–11 of the Arab League Agreement of 3rd November 1952 concerning the Extradition of Fugitive Offenders, 159 B.F.S.P.606 (a subsequent agreement was signed at Riyadh in 1983 without the participation of Egypt – so far it is unavailable in English. I am grateful to the London ofﬁce of the Arab League for this information); Arts. 16, 17, 27–31 and 41–51 of the Swiss Statute on International Judicial Assistance in Criminal Matters, 20 March 1981, 20 INT.LEG.MAT.1339 (1981), as amended 9 December 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern) – see also the Decree on International Mutual Assistance in Criminal Matters, 24 February 1982 as amended 9 December 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern); Art. 12 of the European Convention on Extradition, supra n13; ss12, 15,16 and 17 of the Australian Extradition Act 1988; ss3, 5, 6, 74 and 73 of the British Extradition Act 2003; and, for the U.S.A., 18 U.S.C. 3184. Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate United States magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate United States magistrate judge, to the end that the evidence of criminality may be heard and considered. Such complaint may be ﬁled before and such warrant may be issued by a judge or magistrate United States magistrate judge of the United States District Court for the District of Columbia if the whereabouts within the United States of the person charged are not known or, if there is reason to believe the person will shortly enter the United States. If, on such hearing, he deems the evidence sufﬁcient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. See also, Kassim-Momodu, Extradition of Fugitives by Nigeria, 35 INT’L & COMP. LQ 512 at pp. 518–9 (1986). See Art. 17, European Convention on Extradition 1957, supra n13. 100 INT’L L REP. 657. Supra n37, at 660–61. NB. Given the fugitive at that time faced the death penalty in Belgium, the court’s reasoning has a hint of the academic about it. The case of Roisin McAliskey highlights this matter – requested by Germany in connection with the bombing of British Army barracks in Osnabruck in 1996, Ms McAliskey was held as a

62

Chapter 3

Having completed the ﬁrst administrative phase, the process enters the judicial phase, the extradition hearing itself.40 Extradition hearings do not determine the guilt or innocence of the fugitive, only his susceptibility to surrender.41 The hearing differs between civil and common law States, the latter usually requiring proof of a prima facie case, although this demand is not always included today. Having ﬁnished the hearing and any appeal, the process enters its ﬁnal administrative phase. Given that the courts have agreed to the fugitive’s surrender, it is left to the executive to make its own decision on the case before authorising the fugitive’s surrender – the roles of the judiciary and executive are considered in more detail below. If surrender is authorised by the executive, the requesting State has a prescribed period within which to collect the fugitive; if it fails so to do, he will usually have the right to petition for his release.42 For example, under the former United Kingdom Extradition Act of 1989, s16 allowed for discharge if the fugitive was still in the United Kingdom after the expiration of one month from the date of the issue of the warrant for return under the then s12,43 unless an application had been made

40

41

42

43

Category A prisoner, the most restrictive regime, pending her extradition hearing, despite the fact she was heavily pregnant at the time. Protests were received from the Irish government, but bail was not granted – The Guardian p. 6, 21 FEB 1997. See also, the European Court of Human Rights in Scott v Spain (1997) 24 EHRR 391, which held that States must exercise special diligence in the conduct of an investigation – however, the fact that the accused had already ﬂed from a previous crime and was requested for extradition meant that his continued detention during the present investigation was justiﬁed while the State proceeded with that special diligence. See also, The Guardian p. 8, 1 OCT 1998; p. 15, 5 APR 2001. The Ninth Circuit in the United States has held that bail ought to be granted under the US Constitution unless probable cause was shown – see Parretti v United States, 112 F3d 1363 (1997); 122 F3d 758 (1997); 143 F3d 508 at 511–12 (1998). Cf. Wright v Henkel, 190 U.S. 40 (1903); Coombs, 92 AM.J INT’L L 91 (1998). In civil law countries judicial involvement was a late development – in France it only became the accepted method after the Law of 10 March 1927; see SHEARER, EXTRADITION IN INTERNATIONAL LAW, 1971, at p. 17. Whether the French government has come to terms with this change is open to question following the revelations in Bozano v France, 9 EHRR 297 (1986). See Kelly J in Quinlivan v Conroy No. 2 [2000] 3 IR 154 (Irish High Court), citing Costello J in Clarke v McMahon [1990] 1 IR 228 at 232; Arts. 10–17 of La Loi du 10 Mars 1927; Ch. 3, Section 2; Art. 52 of the Swiss Law; s19 Australian Act; s10, 11, 20, 21, 78, 79, 84, 85 and 87 British 2003 Act; all, supra n35. And see Kassim-Momodu, again supra n35, at pp. 19–21. In Re Ismail, 30 July 1998, the House of Lords was faced with the question of whether a person requested by Germany was truly an accused or whether he was merely wanted for pre-trial investigations. Much turned on the nature of investigation and prosecution in common law and civil law jurisdictions – http://www.parliament.the-stationery-ofﬁce.co.uk/pa/ld199697/ldjudgmt/ ldjudgmt.htm. Arts. 57 and 61 of the Swiss Law; ss22–26 Australian Act; Category 1 States under the British Act of 2003 are not subject to executive control except on grounds of national security (s208), but Category 2 States still include executive discretion, although much reduced, and time limits are to be found in s9 and 117–120; all supra n35. See also, Art. 18 of the European Convention on Extradition, supra n13. s16(2)(b) of the former Extradition Act 1989 – while it may seem strange to cite a case from a repealed statute where the law is now signiﬁcantly different, domestic law is used in this book to

Effecting the Response through International Criminal Procedures

63

for judicial review, whereupon the relevant period ran from whenever that had been concluded or expired. In the unfortunate case of R v Secretary of State for the Home Department, ex p. Chetta,44 the application for judicial review was only instituted more than a month after the s12 warrant for return had been issued, but it was still sufﬁcient to defeat a subsequent application for discharge under s16 because the judicial review application was still live. The European Convention for the Protection of Human Rights and Fundamental Freedoms allows for deprivation of liberty under Article 5 in the following cases and in accordance with the procedure prescribed by law: f. the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition.45

44 45

illustrate points and there is no attempt to provide a comprehensive review of the law relating to international crime from any one State. For completeness and to avoid anachronistic footnote following, however, the Extradition Act 2003 is much more complex, but see s117 with respect to Category 2 States. The Times, 11 JUL 1996. The full text is as follows: – Article 5 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court: (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulﬁlment of any obligation prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or ﬂeeing after having done so: (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority: (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other ofﬁcer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

64

Chapter 3

If, however, there is too long a delay between the decision to return and the actual surrender, then detention may become unlawful, although the Court has taken into consideration the fact that the delay was due to the actions of the applicant and the government’s desire to fully investigate all the applicant’s grounds for challenging the decision.46 It is not a mere question of set time limits, but rather whether the respondent government has acted with due diligence. This brief survey should provide a sufﬁcient background to allow an understanding of the matters to be considered below and set them in their appropriate context.

4. Pre-Hearing Detention A major problem in extradition cases concerns the time a fugitive may have to spend waiting for the extradition hearing to take place after being arrested in the requested State. On the basis that the alleged fugitive offender has already failed to remain to face trial, but rather ﬂed to the requested State, he is usually remanded in custody prior to the extradition hearing. Sometimes, detention can be for long periods while the requesting State gathers its evidence; the problem is worst where the fugitive is arrested on a provisional warrant before a full diplomatic request has been formulated.47 While the treaties do allow generous time limits in which to present evidence, it should also be noted that the primary object must be to let the hearing take place so that judicial consideration might be given to the fugitive’s extraditability: only in cases of extreme abuse of process should a fugitive be released prior to the hearing if there is a real danger he might ﬂee from the requested State before it can take place. It may well be that in cases were abuse of process is arguable, however, a fugitive could challenge a lengthy detention – in one English case, the High Court freed the fugitive offender because there had been too much delay in presenting the case against him.48 Moreover, regional human rights conventions which all provide for freedom from unnecessary detention and arrest.49 Focussing on the most detailed of the convention protections on this matter, Article 5 of the European Convention on Human Rights provides that while no right not

46

47 48

49

Kolompar v Belgium, Series A, vol. 235–C, holding no violation on the facts; Scott v Spain (1997) 24 EHRR 391. See also, 28 Cahiers de Droit Européen 216 (1992). See In the Matter of Campuzano 124 INT’L L REP 451 (1983). The Guardian p. 2, 30 OCT 1996. Rose LJ expressly criticised the Home Secretary for not treating the case with due importance. ECHR, Art. 5, ETS 5, (1950); ACHR, Art. 7, 9 INT.LEG.MAT.673; ACHPR, Art. 6, 21 INT.LEG.MAT.58. Further, the freedom of movement guaranteed to European Community residents in Art. 48 of the Treaty of Rome (1957, Cmnd 4864) was not impinged upon by arrest prior to extradition to another state – Re the Habeas Corpus Application of Carthage Healy, [1984] CMLR 575.

Effecting the Response through International Criminal Procedures

65

to be extradited or expelled exists under the ECHR,50 a fugitive should not be detained for an unreasonable length of time waiting for the requesting State to submit its initial requisition to the requested State. Article 5(3) states that anyone detained shall be brought “promptly” before a judge and is “entitled to a trial within a reasonable time . . .”. However, Article 5(3) only applies to persons detained in accordance with Article 5(1)(c), whereas it would appear that a fugitive arrested under a provisional warrant is detained in accordance with Art. 5(1)(f).51 Thus, at ﬁrst sight a person detained under a provisional warrant has no protection under the Convention to prevent an unnecessarily long detention. According to the British House of Lords in Sotiriardis,52 though, a provisional warrant provides for . . . the precautionary arrest of the fugitive criminal to prevent him from ﬂeeing the country before the requisition for his surrender has been received by the Secretary of State and signiﬁed to the metropolitan magistrate. . . . The purpose of this provision is clear. A person arrested on a provisional warrant is not at that stage subject to extradition at all and may never become so.

Therefore, if the arrest is to comply with Article 5 at all, it must be within Article 5(1)(c) and also Article 5(3). In Brogan v United Kingdom,53 the European Court of Human Rights held that one could take account of the context of terrorism in Northern Ireland in assessing whether a person had been brought before a court promptly for the purposes of Article 5(3). Furthermore, one justiﬁcation for arrest under paragraph (1)(c) is to prevent the detainee from ﬂeeing after committing a crime. Criteria for determining what is a reasonable time were set out in the Neumeister case.54 Where there is a danger of ﬂight the courts ought to look to the character of the fugitive, his morals, his home, his occupation, his assets, his family ties and his links with the country in which he is being prosecuted.55 Since an alleged fugitive will have ﬂed once already, the danger of further ﬂight is increased

50

51 52 53 54

55

App. 1983/63, X v The Netherlands, 8 YB.ECHR 288; App. 2143/64, X v Austria & Yugoslavia, 7 YB.ECHR 314; App. 3110/67 X v Germany, 11 YB.ECHR 494. All cited in Vol. 18, para. 1654, HALSBURY’S LAWS OF ENGLAND, (4th ed). And see Chapter Four below dealing with extradition and the protections in regional human rights conventions. Supra n45. Government of the F.R.G. v Sotiriardis, [1975] AC 1 at 25C and G-H (Emphasis added). Series A, Vol.145–B, at para. 61. App. 1936/63, 11 YB.ECHR 812 at 820. Most of the cases on this provision deal with complicated ﬁnancial crimes which may not provide a useful analogy as to the permissible delay in extradition cases, but in Bonnechaux v Switzerland, 3 EHRR 259 (1979), the Commission held that the likelihood of ﬂight out of the jurisdiction would justify prolonged pre-trial detention. See also the Ventura case, (App. 7438/76 v Italy) where an alleged subversive conspirator was detained for ﬁve years. The Commission argued that this was not a breach of Art. 5(3) because of, inter alia, the seriousness of the offences and the danger of ﬂight – indeed the defendant did ﬂee to Argentina in 1979. Therefore, a person requested for extradition would not be favoured by Art 5(3) since he has already a proven record of ﬂeeing from the courts. Ventura is summarized by KRUGER, STOCKTAKING ON THE ECHR, (COUNCIL OF EUROPE, 1982) pp. 136–38.

66

Chapter 3

in all extradition cases.56 However, to date the European Convention organs have never been asked to assess the danger of ﬂight in an extradition case, though in a 1981 application,57 the Commission held in relation to a German national detained in Germany and charged, inter alia, with murder in Spain, that account should be taken of the difﬁculties in obtaining evidence from abroad. This situation should prove to be an appropriate analogy for a requesting government trying to obtain a provisional warrant. In summary, an arrest under a provisional warrant should be subject to the limits imposed by Article 5(3) since the detention is in accordance with paragraph (1)(c) rather than (1)(f), if one follows the reasoning in Sotiriardis. Even if arrest under a provisional warrant is deemed to be under Article 5(1)(f), the Commission held in Lynas v Switzerland 58 that “only the existence of extradition proceedings justiﬁes deprivation of liberty in such a case”. The Commission went on to decide, therefore, that proceedings must be conducted with “requisite diligence”.59 The European Court of Human Rights held similarly in Quinn v France:60 It is clear from the wording of both the French and the English versions of Article 5 para. 1(f) (art. 5-1-f) that deprivation of liberty under this sub-paragraph will be justiﬁed only for as long as extradition proceedings are being conducted. It follows that if such proceedings are not being prosecuted with due diligence, the detention will cease to be justiﬁed under Article 5 para. 1(f) (art. 5-1-f). The Court notes that, at the different stages of the extradition proceedings, there were delays of sufﬁcient length to render the total duration of those proceedings excessive

If Article 5(3) is inapplicable, then any dilatory requesting State may well fall foul of the Lynas and Quinn decisions. However, while the Convention protections are welcome, they are couched in such a vague way as to be ineffective to provide practical assistance to those detained under a provisional warrant. Given the advances in telecommunications and the limited amount of evidence necessary in most cases for an extradition hearing to go ahead,61 a maximum period of detention of 21 days seems appropriate, especially when, even if released, the fugitive can be re-arrested when sufﬁcient evidence is presented. In conclusion, it is highly unlikely that a fugitive will be granted bail prior to the hearing62 and there is no effective challenge available

56 57 58 59

60 61

62

E.g. R v Governor of Pentonville Prison ex p.Teja, [1971] 2 All ER 11. App. 9604/81, X v Germany, (1983), 5 EHRR 587 at 590. App. 7317/75, 6 D & R 141. Supra n58 at 167. See also, Sanchez-Reisse v Switzerland, App. 9862/82, (1986), 9 EHRR 71. The majority of the court followed Lynas, but took into account the special factors of extradition at 85. See also, Scott v Spain, supra n39. Series A, vol. 311 at paragraphs 48–49. For a liberal interpretation of time limits and the presentation of evidence, see Government of Belgium v Postlethwaite, [1988] AC 924. Cf. Parretti, 112 F3d 1363 (1997).

Effecting the Response through International Criminal Procedures

67

against even a very long period of detention. In the course of time, however, the fugitive will face an extradition hearing.

5. The Roles of the Judiciary and the Executive Before looking at the hearing, the respective roles of the judiciary and executive in extradition requests needs to be examined. As noted above, the usual procedure is for the executive to approve that an authority to proceed be issued, then the request for extradition is dealt with through the courts, and, if the decision is to allow return, the executive has a ﬁnal discretion as to whether to order the fugitive’s surrender. It is this ﬁnal discretion that has given rise to questions about respective roles: in one sense, its existence has limited the scope of judicial inquiry at the hearing stage, but, more importantly, it leaves the way open for judicial review of the executive’s exercise of the ﬁnal discretion. With respect to the role of the courts during the extradition hearing, the existence of an executive element in the ﬁnal decision on surrender has led courts to limit their own range of inquiry; in part, extradition involves matters of foreign relations which courts have eschewed. In the United Kingdom, there is a long tradition of leaving some issues to the Secretary of State: in In re Arton (No. 1),63 the Queen’s Bench Division held that the court only had to deal with the strictly judicial aspect of extradition law, not its political aspects. . . . Acts of Parliament are the sole source,64 and at the same time the strict limitation, of the judicial functions. We are sitting here as judges only, and have nothing to do with political considerations, except as they may have been introduced into the language of the Acts which we are called upon to construe.65

Thus, it used not to be justiciable before the court under the United Kingdom Extradition Act 1870 to argue that the request had not been made in good faith in the interests of justice. That was a matter for the executive, for the courts were not competent to examine it.66 Despite this declared incompetence with regard to matters of the comity of nations, the 1870 Act did provide that the magistrate could determine whether the offence was of a political character. Nevertheless, with regard to rendition within the Commonwealth, the higher courts have been able to review the good faith of the requesting State. A similar right was given to the higher courts in the United Kingdom in cases involving requests from foreign States in s11 Extradition Act 1989. The Extradition Act 2003 makes explicit reference in ss21

63 64 65 66

[1896] 1 QB 108. Author’s note: And the treaty in so far as it was incorporated – supra n63, at 115. See Lord Russell, supra n63, at 112. Supra n63, at 115.

68

Chapter 3

and 87 to the Human Rights Act 1998 under which one can assert that an extradition request is made in bad faith or is an abuse of process.67 On the other hand, a similar desire to refrain from delving into foreign affairs can also be seen in the U.S. rules of act of State68 and of non-inquiry. In Lui,69 the First Circuit Court of Appeals held against the applicant. [The applicant] asks this court to decide that the PRC will not adhere to the Joint Declaration with the United Kingdom, in which it declared its intention to maintain Hong Kong’s legal system for ﬁfty years. All of these questions involve an evaluation of contingent political events. The Supreme Court has said that the indicia of a nonjusticiable political question include: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). While not all of these ingredients are present here, several are. Moreover, unlike many “political questions”, whose resolution, absent judicial determination, must await the vagaries of the political process, here there is a statutory scheme which provides for the resolution of these questions by an identiﬁed member of the executive branch. The case for judicial resolution is thus weaker than with many such questions.

Nor will United States courts investigate the standards of justice that the fugitive might receive if surrendered unless the treaty speciﬁcally grants such jurisdiction.70 In Neely v Henkel,71 the Supreme Court refused to enquire into the legal system of the requesting State to see if it would match the due process guarantees of the United States.72 However, the Anglo-U.S. Supplementary Extradition Treaty, 1986,73 Article 3(a) had provided:

67 68 69 70

71 72

73

See R (Kashamu) v Governor of Brixton Prison [2002] QB 887 at paragraphs 32–34. See also, United States v Noriega 746 F.Supp. 1506 at 1521–22 (1990). United States v Lui Kin-Hong 110 F.3d 103 at 111 (1997). For a fuller treatment of this issue, see Wilson, Toward the Enforcement of Universal Human Rights Through Abrogation of the Rule of Non-Inquiry in Extradition, 3 ILSA J. INT’L & COMP.L 751 (1997). Belgian courts also eschewed this role – Ryan, 100 INT’L L REP.616 at 618–19 (Court of Appeals, Brussels). 180 US 109 (1901). A limited retrenchment of this absolutist position was expounded upon in Gallina v Fraser 278 F.2d 77 at 79 (1960). See also, Extradition of Atta, Ahmad v Wigen 706 F.Supp 1032 (1989), 726 F.Supp 389 at 409–20 (1989), rev’d on this point 910 F.2d 1063 at 1066–67 (1990). Now superseded by the Anglo-American Extradition Treaty of 2003. The Supplementary Treaty in its ﬁnal form was to be found in Cm.294, UKTS 6 (1988) and, with comments, in Appendix 1 to the U.S. Senate EXEC.REPT 99-17, accompanying TR.DOC.99-8. It was ratiﬁed on 23 December 1986.

Effecting the Response through International Criminal Procedures

69

Notwithstanding any other provision of the Supplementary Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality or political opinions, or that he would, if surrendered be prejudiced at his trial or punished, detained or restricted in his liberty by reason of his race, religion, nationality or political opinions.

In Howard 74 and Smyth,75 the Courts of Appeals for the First and Ninth Circuits, respectively, held that Article 3(a) permitted the extradition court to investigate the treatment a fugitive offender would receive on return, but did not abolish the rule of non-inquiry in its entirety. Considered in this context, the language of Article 3(a) must mean that a federal court in an extradition proceeding may look to the treatment that likely will be accorded the extraditee upon the charge for which extradition is sought. This inquiry need not necessarily be limited to the prosecution and formal term of imprisonment, but Article 3(a) does not permit denial of extradition on the basis of an inquiry into the general political conditions extant in Northern Ireland. The history of the provision shows that it requires an individualized inquiry. Accordingly, in order to defeat extradition on the basis of his prospective treatment at the hands of the justice system extending beyond the duration of his formal imprisonment term, Smyth would have to demonstrate by a preponderance of the evidence that the criminal justice system in Northern Ireland likely would exact additional retribution for his crime beyond the remaining term of imprisonment, and that such additional punishment would be inﬂicted on account of Smyth’s political or religious beliefs, and not on account of his having attempted to murder a prison guard.76

The Anglo-U.S. Extradition Treaty of 200377 does not provide a similar guarantee to persons sought for extradition, so this particular exercise in inquiry is now defunct. There used to be a division in the United Kingdom between the role of the extradition magistrate and the higher courts, as well as between the executive and the judiciary.78 In Nielsen79 and subsequently in Sinclair v DPP,80 the House of Lords

74 75

76 77 78

79

80

In re Extradition of Howard 996 F.2d 1320 (1993). In the Matter of the Requested Extradition of Smyth 61 F.3d 711 (1995); rehearing denied, 72 F.3d 1433 (1996); see also, 795 F.Supp. 973 (1992), 820 F.Supp. 498 (1993), 826 F.Supp. 316 (1993), 863 F.Supp. 1137 (1994). Supra n75, at 720. Emphasis added. See Hayes, The new UK-US Extradition Treaty, Statewatch analysis no. 17 (www.statewatch.org). Viz. The magistrate has no power to review the issue of an authority to proceed, whereas the High Court might rarely permit a successful challenge – Rees v Secretary of State for the Home Department [1986] 2 All ER 321 at 333. Nielsen v Government of Denmark [1984] AC 606, [1984] 2 WLR 737. See also, Ofﬁce of the King’s Prosecutor, Brussels (Respondents) v Armas (Appellant) and others, [2005] UKHL 67. [1991] 2 All ER 366 at 377–87.

70

Chapter 3

held that under the old 1870 Act, the magistrate’s role was conﬁned to what was required by that statute81 and that, therefore, the particular treaty terms were irrelevant at that stage in the proceedings. Even when considering which crimes are extraditable,82 the treaty is to be given a wide interpretation if it is of the enumerative variety.83 While the magistrate’s role was still restricted to what the Extradition Act 1989 stipulated, the High Court on review was given a wider remit under s11 of the 1989 Act – this wider remit was, prior to 1989, only available in cases of rendition within the Commonwealth under the old Fugitive Offenders Act 1967. In Schmidt,84 the House of Lords held that whereas under the 1870 Act there was no general discretion to refuse surrender simply because to grant it would be unjust or oppressive,85 under the 1989 Act there remained no inherent common law supervisory power – s11(3) provided a statutory discretion, but it was exhaustive. Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant’s discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant’s return is sought, that – (a) by reason of the trivial nature of the offence; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice, it would, having regard to all the circumstances, be unjust or oppressive to return him.

The coming into force of the Extradition Act 2003 has removed this speciﬁc bar to extradition,86 but extradition is subject to the Human Rights Act 1998 which would give the courts broader powers. Furthermore, the 2003 Act severely restricts the Secretary of State’s involvement in decisions to surrender. With respect to Category 1 States, the minister has no role unless national security is in issue; the position when dealing with a request under the EAW87 scheme is intended to be wholly judicial.88 Nevertheless, it should be noted that the EAW is subject to the Human Rights

81

82 83 84 85 86 87

88

For a similar view of Canadian legislation’s restrictions (Extradition Act RSC 1985, C.E-2) on the role of the extradition judge, see Romania v Cheng, [1997] NSJ No. 106, C.R. No.128423, 6 MAR 1997. See §f(i), below. In re Arton (No. 2) [1896] 1 QB 509 at 517. Schmidt v Federal Government of Germany [1994] 2 All ER 65, esp. at 77. See Atkinson v United States Government [1971] AC 197; see also, Sinclair, supra n80. Although passage of time is preserved under ss14 and 82. OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). On its implementation in England, see SI 2003 No. 3333 as amended. See Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States,

Effecting the Response through International Criminal Procedures

71

Act and a request could be challenged on the ground that it was made in bad faith or is an abuse of process. For Category 2 States, it is much more constrained than it had been under the 1989 Act:89 under s93 of the 2003 Act, he has to have regard to the death penalty and the need for assurances, specialty, and, where the fugitive had previously been extradited to the United Kingdom, any requirement to obtain the consent of the extraditing State. The Conseil d’Etat seems to have even broader powers in France. Review is normally to protect the fugitive’s liberty, not to uphold the requesting State’s interest in having him surrendered. However, in L’Affaire Gouvernement Suisse,90 the Commissaire du Gouvernement opined that, given the Conseil d’Etat had assumed competence to decide on a refusal to extradite,91 it could review a withdrawal of a grant of extradition by the executive, even where the withdrawal was made “dans l’intérêt supérieur de l’Etat français”. Une dérogation à l’obligation d’extrader entre pays démocratiques, parties aux mêmes conventions internationales et respectueux des mêmes principes juridiques, est certes exceptionnellement possible, mais elle est une ‘anomalie’ qui ne peut pas être fondée que sur des motifs impérieux, assumés par les autorités et permettant au juge national d’exercer son contrôle. Ce n’était pas le cas en l’espèce.92

89

90

91

92

COM(2005) 63 ﬁnal, {SEC(2005) 267}; revised to take account of Italian legislation, COM(2006)8 ﬁnal, {SEC(2006)79}. The idea behind the EAW was to speed up surrender within the European Union and it has certainly achieved that aim – see the Jeshma murder case where the accused was speedily returned from Latvia: BBC website, Europe news, 4210783.stm, 2005/06/05, 13:32:58; The Guardian p. 13, 4 JUN 2005; p. 4, 6 JUN 2005; p. 7, 21 JUN 2005. See also the case of Hussein Osman accused of being involved in the 21 July 2005 attempted bombings in London who was found in Italy – his surrender under the EAW, however, might be delayed while the Italian authorities investigate possible crimes committed there – see generally, pp. 1 and 2, 2 AUG 2005; p. 9, 3 AUG 2005; p. 5, 4 AUG 2005; p. 4, 18 AUG 2005; p. 5, 27 AUG 2005. See also, Ofﬁce of the King’s Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others, [2005] UKHL 67 The expedited process has led to fears that the system ignores the rights of the accused (see Convery v High Court of Rotterdam [2005] EWHC 566 (Admin) per Maurice Kay LJ at paragraph 8), but see Lord Bassam of Brighton speaking on the Extradition Act 2003 (Amendment to Designations) Order 2005 in Hansard (HL), http://www.parliament.uk/hansard/hansard2.cfm, 4 FEB 2005, Column 498 (not yet bound, July 2005), reporting that EAWs had been rejected by the courts for lack of information and double jeopardy, amongst other things. See R v Secretary of State for the Home Department, ex p.Launder, The Times, 29 OCT 1996 (QBD); and see [1997] 1 WLR 839 at 848, HL (reversed on other grounds on appeal to the House of Lords). The decision was reviewable if it is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935). See also, Carlyle-Clarke v SSHD [2004] EWHC 2858 (Admin); R v Secretary of State for the Home Department, ex p.Ramda [2002] EWHC 1272 Admin; R (on the application of Abdullah) v Secretary of State for the Home Department, unreported, 19 March 2001. [1995] AJDA 56. On French review procedures in general, see Fines, Note de Jurisprudence [1994] RDP 525. Royaume-Uni de Grand-Bretagne et d’Irlande du Nord et Gouverneur de la Colonie royale de Hong-Kong, Leb. p. 268; [1993] AJDA 848. Supra n90, at pp. 61–62; emphasis added.

72

Chapter 3

Most dramatically, though, the decision of the D.C. District Court in Lobue v Christopher93 held that the involvement of the executive under the U.S. extradition laws was unconstitutional, as permitting executive review of a judicial decision. However, the case has been heavily criticised in other Circuits and vacated by the Court of Appeals.94 It is aberrant and should be ignored. Setting to one side Lobue, there is a general policy of the judiciary in various jurisdictions restricting its own competence during the hearing stage, but being prepared to review any executive discretion regarding surrender. This balancing of interests cannot be avoided. Some matters relating to extradition are peculiarly suitable only for a decision by the executive, calling into question the extremely limited role of the British Secretary of State when dealing with Category 1 States. On the other hand, the liberty of the person is best defended by the courts. It may be that the decision to permit the issue the initial authority to proceed could be transferred from the executive, but that rarely raises any matters of importance. The difﬁcult questions relate solely to the scope for judicial inquiry into the request and into the executive’s ultimate conﬁrmation, or otherwise, of surrender. The result is a long drawn out procedure95 which cannot, with proper regard to due process, be shortened without unduly threatening the liberty of the person.96

6. Extradition Crimes, Jurisdiction and Double Criminality Although large topics in their own right, extradition crimes, jurisdiction and double criminality can only be understood fully as a whole.97 They arise out of the elements of reciprocity in extradition law and its creation through bilateral agreements. In simple terms, the requesting State must seek the return of the fugitive for an extradition crime over which it has jurisdiction98 and, normally, that it satisﬁes the requirement of double criminality.

6.1 Extradition Crimes Extradition crimes may be designated by either the enumerative or the eliminative method. If the enumerative approach is adopted, the extradition treaty and any

93 94 95

96 97

98

893 F.Supp 65 (1995). 82 F.3d 1081 (1996). Warrant approved (executive) – extradition hearing (courts) – review/appeals (courts) – decision on surrender (executive) – review of decision to surrender (courts) and remand to the executive. Cf. Hempel v Attorney-General (1987) 77 ALR 641 at 674 et seq. (Australian Fed.Ct). For the classical position, see BASSIOUNI, INTERNATIONAL EXTRADITION AND WORLD PUBLIC ORDER, at pp. 314–29 (1974), and SHEARER, supra n40, at pp. 134–49. The position can be complicated if some of the conduct took place in the requesting and the requested State – see Convery v High Court of Rotterdam [2005] EWHC 566 (Admin).

Effecting the Response through International Criminal Procedures

73

domestic legislation list all the offences for which surrender might be granted; if the offence is not listed, then there is no extradition crime and the fugitive will not be surrendered. The number of countries using the enumerative approach is diminishing99 as its drawbacks become increasingly evident. The usual complaint against the enumerative method is that it is very restrictive and that any offences added after the conclusion of the treaty have to be the subject of time-consuming supplementary treaties. A variant of the enumerative method provides for a wider deﬁnition of extradition crimes; it has been included in more recent treaties and it permits

99

Even the U.K. adopted the eliminative method in s1 Extradition Act 1989. The enumerative method has, however, returned in the EAW, although as a way of setting out those crimes where double criminality is not required. Article 2.2 The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are deﬁned by the law of the issuing Member State, shall, under the terms of this Framework Decision and without veriﬁcation of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: – participation in a criminal organisation, – terrorism, – trafﬁcking in human beings, – sexual exploitation of children and child pornography, – illicit trafﬁcking in narcotic drugs and psychotropic substances, – illicit trafﬁcking in weapons, munitions and explosives, – corruption, – fraud, including that affecting the ﬁnancial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ ﬁnancial interests, – laundering of the proceeds of crime, – counterfeiting currency, including of the euro, – computer-related crime, – environmental crime, including illicit trafﬁcking in endangered animal species and in endangered plant species and varieties, – facilitation of unauthorised entry and residence, – murder, grievous bodily injury, – illicit trade in human organs and tissue, – kidnapping, illegal restraint and hostage-taking, – racism and xenophobia, – organised or armed robbery, – illicit trafﬁcking in cultural goods, including antiques and works of art, – swindling, – racketeering and extortion, – counterfeiting and piracy of products, – forgery of administrative documents and trafﬁcking therein, – forgery of means of payment, – illicit trafﬁcking in hormonal substances and other growth promoters, – illicit trafﬁcking in nuclear or radioactive materials, – trafﬁcking in stolen vehicles, – rape, – arson, – crimes within the jurisdiction of the International Criminal Court, – unlawful seizure of aircraft/ships, – sabotage.

74

Chapter 3

extradition for offences merely extraditable under the municipal laws of the requesting and requested States, as well as for the offences listed in the treaty.100 This extended deﬁnition still produces a delay in any update of the list, for domestic legislation will require amendment. The alternative eliminative approach, seen, for example, in Article 4 of the French extradition statute of 1927, usually deﬁnes extradition crimes in terms of a minimum penalty. Article 2 of the European Extradition Convention101 lays down a one year minimum, while extradition within the European Union either follows that model or, if within the EAW scheme, requires a three year minimum for listed offences, but then does not require double criminality. Research in the United Kingdom has shown that one result of converting to the eliminative approach is that the number of extradition crimes is greatly increased,102 which should of course prevent fugitives escaping trial because of technicalities in the treaties or domestic legislation. Despite the fact that most requests involve either dishonesty offences, offences against the person or, occasionally, narcotics offences, already covered by nearly all the enumerative tests currently employed, the eliminative method is more appropriate and much more efﬁcient in the light of developments in international criminal law. While the eliminative test has elements open to misinterpretation through a lack of precision,103 it is beyond question that it is the best method of delimiting extradition crimes. However, because of its much wider ambit, it must be tied closely to the principle of double criminality if reciprocity of criminalised behaviour is going to continue to be a fundamental plank of extradition practice.104

100

101 102

103 104

E.g. the Anglo-Finnish treaty, UKTS 23 (1977), Cmnd 6741 and UKTS 53 (1977), Cmnd 6843 – now superseded by the EAW (see SI 2003 No. 3333 as amended). Before adopting a two year minimum penalty eliminative test at Harare in 1986 (LMM(86)64), the Commonwealth Scheme (Cmnd 3008) had the worst of both worlds, combining the enumerative and eliminative tests in Article 2 and Annex 1 (see R v Governor of Pentonville Prison, ex p.Khubchandani, (1980), 71 Cr.App.R.241). See now, the London Scheme for Extradition within the Commonwealth, Kingstown 2002, supra n13. Supra n13. See THE INTERDEPARTMENTAL WORKING PARTY’S REVIEW OF THE LAW AND PRACTICE OF EXTRADITION IN THE UNITED KINGDOM, (CRIMINAL JUSTICE DEP’T, HOME OFFICE, 1982). Hereinafter, 1982 REVIEW. The list of extradition crimes under the previous legislation, the Extradition Act 1870, covered a mere two pages (pp. 106–107); the extra offences are found in Appendix D at pp. 108–116. Then again, under the Extradition Act 2003 one can now return a fugitive who has allegedly committed that notorious international crime, purporting to act as a spiritualistic medium for reward, contrary to s1 Fraudulent Mediums Act 1951! Prior to the Extradition Act 2003, the government undertook another Extradition Review in 2001, but it was in many ways it simply enhanced the existing 1989 system. SHEARER, supra n40, at pp. 136–7. See, however, the EAW, where within the European Union double criminality has been abolished with respect to 32 offences set out in Article 2.2 – supra n99.

Effecting the Response through International Criminal Procedures

75

6.2 Jurisdiction105 It might seem obvious that the requesting State must be competent to prosecute the fugitive if surrendered, but the issue of concern is really to do with whether the requested State recognises the principle of jurisdiction asserted by the requesting State. Traditionally, common law States only acknowledged territorial jurisdiction,106 on the basis that it would be wrong to interfere in the internal affairs of the State where the offence occurred, while civil law States operated various forms of extraterritorial jurisdiction, as well, even if rarely. Thus, a person could be prosecuted for the same offence in two different States because each asserts a different principle of criminal jurisdiction.107 The ﬁrst point, however, is to determine which type of criminal jurisdiction is relevant. There are three recognised forms of jurisdiction matching the three branches of government: legislative, judicial and executive. Legislative jurisdiction goes to the ability to prescribe the reach of national laws, judicial jurisdiction refers to the ability of courts to apply the fruits of legislative jurisdiction in individual cases and, ﬁnally, executive jurisdiction is the power to enforce decisions of the courts or legislature.108 With respect to jurisdiction over crimes,109 legislative and judicial jurisdiction are the main topics of consideration.110 105

106

107

108 109

110

See generally – EXTRATERRITORIAL CRIMINAL JURISDICTION, (COUNCIL OF EUROPE, 1990), hereinafter, COUNCIL OF EUROPE, 1990 (the original data on which this is based may be found in PC-R-EJ/INF Bil.); Blakesley, Jurisdictional Issues and Conﬂicts of Jurisdiction, at pp. 131 et seq. of BASSIOUNI, LEGAL RESPONSES, supra n9 – hereinafter, Blakesley, Jurisdiction; and Hirst, Jurisdiction over Cross-Frontier Offences, 97 LQR 80 (1981) – hereinafter, Hirst, Cross-Frontier Offences. See also Harvard Draft Convention on Jurisdiction with Respect to Crime, 29 AM.J INT’L L Supp. 439 (1935); AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF FOREIGN RELATIONS OF THE UNITED STATES (3d), 1986; hereinafter, RESTATEMENT; Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 53 BRIT.YB.INT’L L 1 (1982); Gilbert, Crimes Sans Frontières: Jurisdictional Problems in English Law, 63 BRIT.YB.INT’L L 415 (1992); Maier, Jurisdictional Rules in Customary International Law, at pp. 64 et seq. of MEESSEN, EXTRA-TERRITORIAL JURISDICTION IN THEORY AND PRACTICE, 1996; Mann, The Doctrine of Jurisdiction in International Law, [1964-I] Hague Rec., and The Doctrine of Jurisdiction in International Law, Twenty Years Later, [1984-I] Hague Rec. As a consequence, following the attacks on the World Trade Center and the Pentagon on 11 September 2001, the United Kingdom, realizing that it could not deport several persons it believed were a threat to the State because of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, instead implemented detention without trial – see the Anti-Terrorism, Crime and Security Act 2001; The Guardian p. 4, 5 OCT 2004. It is interesting to note that the Schengen Accords, supra n18, provide for a limited sense of non bis in idem – Articles 54–58. See COUNCIL OF EUROPE 1990, pp. 7 and 18, supra n108. Of course, civil actions may be possible against the perpetrators of international crimes, too. See Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya and another; Mitchell and others v Al-Dali and others (CA) [2004] EWCA Civ 1394; Al Skeini v Secretary of State for Defence [2004] All ER (D) 197 (Dec); Kadic v KaradÌzi,c (1996) 70 F3d 232; Mundis, Tachiona v Mugabe: A US Court Bows to the Personal Immunities of a Foreign Head of State, 1 JICJ 462 (2003). See the reach of United Kingdom sex crimes legislation to the Pitcairn Islands. Christian and others v R [2004] UKPC 52 (Transcript) paragraphs 1 and 11:

76

Chapter 3

Within legislative and judicial jurisdiction, there are several principles determining the scope, accepted by a greater or fewer number of States. No-one would dispute the right of a State to try a person for a crime, the elements of which take place and the effect of which is felt solely within the territory of that State; it is an example of the sovereign nature of a State. The simple territorial principle, as that might be termed, presents no problem.111 However, where certain elements of a crime are committed or if the result of a crime is sustained in more than one country, or if the offence occurs wholly outside the State, then so far unanswered questions of jurisdiction arise. As yet, there is no uniformly accepted understanding on how far a State might extend its criminal jurisdiction over offenders. As regards extradition law, whether the requested State will recognise the requesting State’s jurisdiction is crucial to the grant of surrender. Thus, it is necessary to consider brieﬂy the various principles of jurisdiction which go beyond simple territoriality. a. Qualiﬁed Territorial Jurisdiction In such cases, some or even all of the elements of the offence occur outside the State claiming competence to prosecute.112 The point at issue is how little of the offence need take place or have effect in the State before it can claim territorial jurisdiction. There are various tests. The widest application of the qualiﬁed territoriality principle is seen in the “doctrine of ubiquity”.113 It allows the State to assume jurisdiction over an offence and any inchoate offence connected therewith, if a part of the offence or even, according to some States, if just its effects are felt in the prosecuting State. It goes without saying that a wide application of the ubiquity and effects doctrines may in fact be tantamount to an extraterritorial application of criminal laws under the guise of the principle of territoriality.114

Thus, it can be seen right from the outset that, on the one hand, there is no neat division between territorial and extraterritorial jurisdiction, and, on the other, that a State claiming to be conservative when it comes to asserting criminal jurisdiction by only applying the territorial principle may still have a very extensive powers of prosecution.115

111

112 113 114 115

[1] The Petitioners are all male inhabitants of the Island of Pitcairn. They were committed for trial on various charges brought under the Sexual Offences Act 1956, a United Kingdom Statute, as applied to the Pitcairn Islands by ordinances made under the British Settlements Acts 1887 and 1945. Cf. Border Guards Prosecution Case, 100 INT’L L REP.364 (German Federal Supreme Court), where the crimes had been committed in the former DDR before reuniﬁcation. Hirst’s article, supra n105, concentrates on this principle of jurisdiction. COUNCIL OF EUROPE, 1990, supra n105, at pp. 8, 9 and 24. COUNCIL OF EUROPE, 1990, supra n105, at p. 24. See In re Al-Fawwaz [2002] 1 AC 556, regarding US jurisdiction over the bombings of its

Effecting the Response through International Criminal Procedures

77

The doctrine of ubiquity is a very unsophisticated test for the instances when territorial jurisdiction might be exercised. Blakesley116 provides a clearer analysis; in his view, territorial jurisdiction has both subjective and objective applications. Subjective territoriality equates with that part of the doctrine of ubiquity which grants jurisdiction if an element of the offence takes place in the prosecuting State. It is found in statutory form in section 7 of the New Zealand Crimes Act 1961.117 For the purposes of jurisdiction, where any act or omission forming part of an offence, or any event necessary to the completion of an offence occurs in New Zealand, the offence shall be deemed to be committed in New Zealand, whether the person charged with the offence was in New Zealand or not at the time of the act, omission or event.

The Canadian Supreme Court decision in Libman v The Queen118 reveals its practical application. In that case the accused was charged with fraud. He had telephoned residents of the United States from Canada and induced them to buy worthless shares in some Costa Rican gold mines by making false statements as to their value. The victims of the fraud sent their money to the accused’s associates in Panama and Costa Rica as directed, although it eventually was received back in Canada. Adopting a traditional analysis of the forum of the crime, the deception took place in the U.S.A. and the result of the crime was the money being received in Central America.119 Traditionally, the fact the funds eventually came to Canada is irrelevant. Neither the elements of the offence nor its results occurred in Canada. Nevertheless, the Supreme Court held that the accused could be prosecuted in Canada. [The traditional analysis] ignores the fact that the fruits of the transaction were obtained in Canada as contemplated by the scheme. Their delivery here was not accidental or irrelevant. It was an integral part of the scheme. While it may not in strictness constitute part of the offence, it is . . . relevant in considering whether a transaction falls outside Canadian territory. For in considering that question we

116 117 118

119

embassies in Kenya and Tanzania – four of the associates of those in the Al-Fawwaz case were convicted in the United States on 29 May 2001; see also, Ireland prosecuting John McNamara for conspiracy to cause an explosion in the State or elsewhere (emphasis added) – The Guardian p. 8, 1 SEP 1998. Jurisdiction, supra n105, at pp. 154 et seq. Cited in Hirst, Cross-Frontier Offences, supra n105, at p. 101. 21 DLR (4th) 174, SCC, 1986. The quotation is taken from the judgment of La Forest J at 198–201. The case is very instructive because it contains a comprehensive review of English and Canadian case law on the topic of territorial jurisdiction. See also, Melia v United States 667 F.2d 300 (1981). In R v Governor of Brixton Prison, ex p.Rush [1969] 1 All ER 316, the requested fugitive offender had perpetrated practically the identical crime to that in Libman. The English Divisional Court refused extradition because English courts would not have had jurisdiction over the completed offence if references to Canada, the requesting State, were replaced by references to England. Cf. R v Ismail, unreported, QBD, 2 July 1997; upheld on a different point by House of Lords, [1999] AC 320.

78

Chapter 3 must . . . take into account all relevant facts that take place in Canada that may legitimately give this country an interest in prosecuting the offence. One must then consider whether there is anything in those facts which offends international comity. .... I might summarize my approach to the limits of territoriality in this way. . . . [All] that is necessary to make an offence subject to the jurisdiction of our courts is that a signiﬁcant portion of the activities constituting the offence took place in Canada. . . . [It] is sufﬁcient that there be a ‘real and substantial link’ between an offence and this country. . . . Just what may constitute a real and substantial link in a particular case, I need not explore. . . . The outer limits of the test may, however, well be coterminous with the requirements of international comity.

Stated so broadly, subjective territoriality is tantamount to a form of extraterritorial jurisdiction. More in line with the accepted scope of the territorial principle is objective territoriality, which allows a State to assume jurisdiction where the effects of the crime are sustained in that State.120 This form of territoriality has received international approval. In The Steamship Lotus,121 Turkey claimed to have authority to prosecute the captain of the Lotus following its collision with the Turkish collier, the Boz Kourt, with the loss of eight Turkish crewmen. The case is well known for its failure to endorse the passive personality principle of jurisdiction. Moreover though, the majority of the Permanent Court of International Justice did ﬁnd in Turkey’s favour on the ground that since the Boz Kourt was ﬂying the Turkish ﬂag it was, as such, to be assimilated to Turkish territory and that, therefore, the result of the crime occurred in the jurisdiction of the State.122 It is a

120

121 122

Trafﬁcking of persons provides a good example, with victims being transported across several countries before reaching the destination. See United Kingdom prosecution of trafﬁcker for bringing people into United Kingdom – The Guardian p. 5, 23 DEC 2001; prosecution of trafﬁckers in Belgium where ultimate destination was the United Kingdom – The Guardian p. 7, 13 AUG 2003; trafﬁcking as a transnational enterprise – The Guardian pp. 1, 2 and 6, 30 JUL 2003. And see Protocol to Prevent, Suppress and Punish Trafﬁcking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001). (France v Turkey), PCIJ Rep. Series A, No. 10, 1927. See the dissenting judgment of Lord Finlay, at p. 53, supra n121. See also COUNCIL OF EUROPE, 1990, supra n105, at pp. 11 et seq. The ﬂag principle is part of the territorial principle, since it brings ships and aircraft within the territory of the ﬂag state no matter where they might be. See R v Anderson, (1868) 11 Cox CC 198; R v Governor of Brixton Prison, ex p.Minervini, [1959] 1 QB 155. In the Council of Europe Agreement on Illicit Trafﬁc by Sea, implementing article 17 of the United Nations Convention against Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances, 31 January 1995, preferential jurisdiction is given to the ﬂag State. Article 1b. ‘Preferential jurisdiction’ means, in relation to a ﬂag State having concurrent jurisdiction over a relevant offence with another State, the right to exercise its jurisdiction on a priority basis, to the exclusion of the exercise of the other State’s jurisdiction over the offence. The military take their law with them when they go abroad – e.g. R v Page [1953] 2 All ER 1355, noted 30 BRIT.YB.INT’L L 513 (1953) – (s41 Army Act 1955); R v Cox [1961] 3 All ER 1194, noted 37 BRIT.YB.INT’L L 555 (1961) – (s70(2) Army Act 1955); see also, The Guardian p. 14, 11 NOV 2002; p. 12, 22 MAY 2004; p. 6, 14 SEP 2005. Further, see s3(1)(b) Protection of Military

Effecting the Response through International Criminal Procedures

79

classic example of the objective territorial principle. Where a boat carrying cannabis resin from Morocco, which had been destined for the United States, was forced into Canadian territorial waters, in part by adverse weather conditions, it was still held that the accused had unlawfully imported a narcotic into Canada.123 In United States v Noriega,124 the District Court held that where the activities outside the United States produce effects within the United States, then under U.S. jurisprudence applying traditional principles of international law the perpetrator can be prosecuted, given the domestic legislation was intended to have extraterritorial effect. In United States v Layton,125 a U.S. Congressman was murdered in Guyana in circumstances implicating the accused; killing a Congressman was a speciﬁc offence and the court held it extended to deaths occurring abroad, in part because it was intended to and did have harmful consequences in the United States, thus falling under the objective territoriality principle.126 A similar result is found in Atkinson v Ministère Public,127 where the Luxembourg Court of Appeal was prepared to allow extradition to France where cheques had passed through banks in Luxembourg and the United Kingdom, but had eventually been presented for payment Banque National de Paris – the effect was, thus, in France.128 The problem with objective territoriality occurs in relation to inchoate offences. If the crime is planned abroad, but intended to have an effect in the State, then the objective territorial approach is designed to grant jurisdiction: in Ryan,129 the Brussels Court of Appeals was prepared to hold that the English courts had jurisdiction over a conspirator who never set foot in the United Kingdom, but who supplied bomb making equipment from Continental Europe, because the effect of the bombs would be sustained in the United Kingdom. Difﬁculties arise where the plan never comes to fruition. In those circumstances, neither an element of the offence nor its consequences impact within the territorial jurisdiction of the State.130

123 124 125

126 127 128

129 130

Remains Act 1986. Three Czech soldiers who killed their Captain when acting as part of the UNPROFOR operation where claimed to be subject to Czech law, partly because the army took its home law with it – CET, 28 MAR 1995. Similarly, when NATO forces are stationed abroad, by agreement they are subject to the military discipline of their own forces, not the jurisdiction of the host State, unless the sending State agrees – CDS v The Netherlands 96 INT’L L REP.383 (Dutch Supreme Court). Cf. The Philippines has issued warrants for four United States Marines for rape at the Subic base; they are under the protection of the United States embassy that has so far refused to hand them over – BBC News website 4561686.stm, 2005/12/27 04:53:58. R v Salvador, Wannamaker, Campbell and Nunes 101 INT’L L REP.269. Supra n68, at 1512–15. 509 F.Supp. 212 (1981): the best example of a ‘belt and braces’ approach to jurisdictional competence in the U.S. system – many different principles of jurisdiction were asserted. Supra n125, at 216. 100 INT’L L REP.610. (Lux., Ch.du Conseil) See also the Gary McKinnon case, where the United States has requested his extradition regarding hacking into U.S. military computers from his home in the United Kingdom – BBC news website, Americas, 4071708.stm, 2005/06/08, 15:20:48; 4721183.stm, 2005/07/27, 12:29:25: and The Guardian p. 1, 9 JUN 2005; pp. 8–9, 11 JUN 2005; p. 13, 28 JUL 2005; p. 13, 15 FEB 2006. Supra n70, at 617–19. See Blakesley, Jurisdiction, supra n105, at p. 160, citing the French Professors Merle and Vitu.

80

Chapter 3

However, British courts, among the strictest and most conservative in matters of jurisdiction, operate a variant of objective territoriality,131 but have no problem of competence, it would seem, if the intention was that the effects of the offence would be sustained within the England and Wales. The British analysis of territorial jurisdiction divides all crimes into two categories, conduct and result. In cases of conduct crimes, such as blackmail or all varieties of inchoate offence,132 jurisdiction is asserted only if an element of the actus reus of the crime occurs within the territory of England and Wales. Result crimes, such as murder, only fall within the jurisdiction of the courts if the result occurs within the territory. Thus, if a person is attacked in England, but dies in Scotland, a separate jurisdiction, the assailant cannot be tried before English courts.133 As such, the United Kingdom’s approach is much too narrow and needs to be extended. Furthermore, if strictly applied in practice, it could not accommodate unfulﬁlled, inchoate offences where all the conduct occurred outside the United Kingdom; all inchoate offences under this test are conduct crimes, even offences such as conspiracy to or attempted murder, where the completed crime is a result offence. Nevertheless, either the judges do not seem to have noticed this loophole, or they are constructively deeming the conduct to occur in the United Kingdom.134 An example which might have gone further than the traditional analysis is found in the Privy Council extradition case of Somchai Liangsiriprasert v Government of the U.S.A.135 The fugitive was charged with conspiracy to import heroin into the United States. Whereas illegally importing anything is a result crime, the inchoate offence of conspiring to do so is a conduct crime. Furthermore, the heroin was never illegally imported. It became necessary to decide whether the United Kingdom would have had jurisdiction if the conspiracy had been to import the drugs into the United Kingdom. If the inchoate crime was aimed at England with consequent injury to English society, why should the English courts not accept jurisdiction to try it if the authorities could lay hands on the offenders either because they came within the jurisdiction or through extradition procedures. If evidence was obtained that a terrorist cell operating abroad was planning a bombing campaign in London, what sense could there be in the authorities not acting until the cell came to England to plant the bombs, with the risk the terrorists might slip through the net.136

131 132

133 134 135 136

See Hirst, supra n105. See Treacy v DPP, [1971] AC 537. See also, Ismail, unreported, QBD, CO/2905/96, 2 July 1997, where although the proceeds from the crime eventually ended up in a third State, the requesting State where the fraud had occurred and where the proceeds had ﬁrst been received will still have jurisdiction to prosecute. Hirst, supra n105, at p. 83. Secretary of State for Trade v Markus, [1976] AC 35. Hirst, supra n105, at p. 89. See also, Gilbert, supra n105, at pp. 436 et seq. [1990] 2 All ER 866 (PC). Somchai, supra n135, at 877–78, per Lord Grifﬁths.

Effecting the Response through International Criminal Procedures

81

While it shows that there need be no problem assuming jurisdiction over inchoate offences under the objective territoriality principle, it is actually a departure from the conduct/result distinction in English law.137 As Lord Grifﬁths went on to point out. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad could be to establish the link between the conspiracy and England, or possibly to show the conspiracy was continuing. If that could be established by other evidence it defeated the preventative purpose of creating the crime of conspiracy to have to wait until some overt act was performed in pursuance of the conspiracy.138

The Privy Council is asserting competence to prosecute because the effect of the full result offence, if it were to have been completed, would have been felt in the United Kingdom, even though the inchoate offence charged is a conduct crime. There have also been statutory developments in the United Kingdom.139 Changes to jurisdictional competence over cross-frontier ﬁnancial crimes in the Criminal Justice Act 1993 give courts the right to prosecute for a variety of cross-frontier ﬁnancial crimes: Part I of the 1993 Act eventually came into force in 1999.140 The fact that the legislation was enacted indicates that the common law was recognised to be a problem and that the then law was seen as inadequate. Section 1 of the Criminal Justice Act 1993 lists certain property related offences under the Theft Acts 1968 and 1978 and the Forgery and Counterfeiting Act 1981, as well as conspiracies and attempts to commit such offences. Under s2 of the 1993 Act, in relation to forgery, theft or obtaining by deception, amongst other offences, English courts will be given jurisdiction over offences where any relevant event occurred in England and Wales. s2(1) For the purposes of this Part, ‘relevant event’, in relation to any [listed] offence, means any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence. (2) For the purpose of determining whether or not a particular event is a relevant event in relation to a [listed] offence, any question as to where it occurred is to be disregarded. (3) A person may be guilty of a [listed] offence if any of the events which are relevant events in relation to the offence occurred in England and Wales.

137

138

139

140

The reasoning bears more than a passing resemblance to the protective principle, discussed below in §(c). Supra n135, at 878. See also, R v Sansom, Smith, Williams and Wilkins [1991] 2 WLR 366. See also, United Kingdom request to Thailand for the extradition of an Algerian man, Atamnia Yacine, in relation in part to the forgery of passports – The Guardian p. 7, 30 AUG 2005; BBC News website 4190806.stm, 2005/08/27 12:40:04. See Gilbert, Who has Jurisdiction for Cross-Frontier Financial Crimes?, [1995] WJCLI 76 at pp. 85 et seq. SI 1999 No. 1189, s2.

82

Chapter 3

Section 2 ranks as one of the worst pieces of Parliamentary draftsmanship. To understand it, subsection (3) should be read ﬁrst: if a relevant event occurred in England and Wales, the offence will be triable once the Act is in force. Relevant events are, according to subsection (1), any conduct or result that forms part of the offence. Under subsection (2), one determines the relevant events regardless of where they occurred, thus showing that there can be more than one relevant event. For the purposes of asserting jurisdiction, only one relevant event, no matter how minor, so long as proof of it is required for the offence, must have occurred in England and Wales. For a s1 crime, therefore, English criminal jurisdiction will eventually be as extensive as that in New Zealand under s7 of the Crimes Act 1961. Section 4 will make it even easier to assert that a relevant event ‘occurred’ in England and Wales. s4 In relation to a [listed] offence – (a) there is an obtaining of property in England and Wales if the property is either despatched from or received at a place in England and Wales; and (b) there is a communication in England and Wales of any information, instruction, request, demand or other matter if it is sent by any means – (i) from a place in England or Wales to a place elsewhere; or (ii) from a place elsewhere to a place in England and Wales.

Taking ss2 and 4 together, it should not mean that English courts could, in the future, prosecute the accused for any alleged illegal activities that had an effect in England and Wales. The Criminal Justice Act 1993, once it comes into force, is tantamount to giving English courts extraterritorial jurisdiction over international ﬁnancial crimes so long as at least part of the offence has had an effect in the United Kingdom. The United Kingdom adopted a more general power to prosecute conspiracies that take place in the United Kingdom to commit offences “in a country or territory outside the United Kingdom” in s5 of the Criminal Justice (Terrorism and Conspiracy) Act 1998.141 Analogously to extradition law, the planned crime must be criminalised under English law and the law of the State where it is proposed to bring it to completion.142 141

142

See the Al-Siri case, Guardian Unlimited, 17 MAY 2002, http://www.guardian.co.uk/afghanistan/ story/0,1284,717114,00.html. And see the detention of Abu Hamza for aiding and abetting terrorism – The Guardian p. 5, 27 AUG 2004; p. 5, 18 SEP 2004; p. 2, 16 OCT 2004; p. 12, 27 OCT 2004; p. 8, 5 JAN 2005. He was convicted of crimes of soliciting murder – The Guardian p. 1, 8 FEB 2006. Criminal Justice (Terrorism and Conspiracy) Act 1998 s5(1) The following section shall be inserted after section 1 of the Criminal Law Act 1977 (conspiracy) – 1A Conspiracy to commit offences outside the United Kingdom (1) Where each of the following conditions is satisﬁed in the case of an agreement, this Part of this Act has effect in relation to the agreement as it has effect in relation to an agreement falling within section 1(1) above. (2) The ﬁrst condition is that the pursuit of the agreed course of conduct would at some stage involve –

Effecting the Response through International Criminal Procedures

83

Given that ﬁnancial transactions often take place only in terms of two computers communicating in that penumbral region of cyberspace,143 jurisdictional issues are going to become more complex and looser rules on competence are going to prove necessary. If the move to banks in outer space based on satellites takes place, too, then cross-frontier ﬁnancial crimes will take on extra facets. The satellite is deemed to belong to the State of registration,144 akin to ships sailing under a ﬂag.145 However, it is not clear what would be the position if a bank from another State were to ‘rent’ part of the satellite’s memory cells – could the State in which the bank is located prosecute someone accused of ﬁnancial crimes? Moreover, the Outer Space Treaty in Article 6 assumes that a satellite might be registered to an international organization, such as the European Space Agency; it might also be that the European Union ‘rents’ memory on this satellite, raising even more questions about the jurisdictional competence of the European Union itself in criminal matters if someone seeks to take funds ‘held’ in the satellite. As things stand, resolution of these questions is for the future, but cross-frontier ﬁnancial crime will inevitably demand greater jurisdictional competence. The approach in Libman146 based on the State’s interest in prosecuting the offender has many advantages. Some cyberspace issues, however, can be resolved under the normal rules relating to territoriality. Although the ‘grooming’ of the child took place over the internet from the United States, the actual taking of the child occurred in the United Kingdom allowing for simple territorial jurisdiction.147 Alternatively, if the effect is felt in a State, it may be able to assert objective territorial jurisdiction148 or even the protective principle.

143

144

145 146 147 148

(a) an act by one or more of the parties, or (b) the happening of some other event, intended to take place in a country or territory outside the United Kingdom. (3) The second condition is that that act or other event constitutes an offence under the law in force in that country or territory. (4) The third condition is that the agreement would fall within section 1(1) above as an agreement relating to the commission of an offence but for the fact that the offence would not be an offence triable in England and Wales if committed in accordance with the parties’ intentions. (5) The fourth condition is that – (a) a party to the agreement, or a party’s agent, did anything in England and Wales in relation to the agreement before its formation, or (b) a party to the agreement became a party in England and Wales (by joining it either in person or through an agent), or (c) a party to the agreement, or a party’s agent, did or omitted anything in England and Wales in pursuance of the agreement. See Bigos, Jurisdiction over Cross-Border Wrongs on the Internet, 54 INT’L & COMP.LQ 585 (2005). See also, The Guardian p. 19, 2 JUN 1997. Article 8, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies 1967, 610 UNTS 205. Viz. The Steamship Lotus, supra n121. Supra n118. The Guardian p. 2, 22 AUG 2003. See the case of Gary McKinnon who is requested by the United States for the biggest ever hack

84

Chapter 3

Finally, proving corporate criminal responsibility is difﬁcult when all the incidents occur within the State. The difﬁculties of attaching criminal responsibility to members of the board of directors for incidents that occur in some third State are even more difﬁcult.149 Nevertheless, assuming the conduct would be criminal, mutatis mutandis, in the requested State, the removal of the prima facie case requirement can only make surrender more likely in the future.150 If all the above signals a blurring of the distinction between extraterritorial and territorial offences and the adoption of general objective territoriality jurisdiction, it is to be welcomed. It reveals that States in general need competence over offences performed outside their territorial limits and that this can only be effected if wider interpretations of jurisdictional authority are accepted. If Britain, one of the strictest States, is seen to be moving in this direction, then it can only mean that there is a widespread acknowledgement of the need for improved systems of international law enforcement. b. The Active Personality Principle151 This head of jurisdiction is truly extraterritorial. It is sometimes known as the nationality principle. With very few exceptions, it used to be exercised solely by civil law States.152 However, along with a few longstanding examples, such as homicide153 and bigamy in England, the rise in so-called sex-tourism, where men go abroad in order to have sex with children, has led governments in common law jurisdictions to make this practice prosecutable on their return.154 The problem of having no generic right to prosecute nationals was brought home by the case of the British citizens detained by the United States at Guantanamo Bay. The United States was initially not prepared to release them to the United Kingdom because there would have been no prospect of them being prosecuted after their return.155

149

150

151 152 153

154

155

of military computers – The Guardian p. 1, JUN 2005; pp. 8 and 9, 11 JUN 2005; p. 13, 28 JUL 2005; p. 13, 15 FEB 2006; BBC News website 4071708.stm, 2005/06/07 22:43:39 and 2005/06/08 15:20:48. See Gobert, Corporate Killings at Home and Abroad – Reﬂections on the Government’s Proposals, 118 LQR 72 (2002). See The Guardian p. 15, 12 JAN 2000; p. 2, 29 AUG 2002; p. 14, 30 AUG 2002; p. 11, 20 JUL 2004. See Arnell, The Case for Nationality Based Jurisdiction, 50 INT’L & COMP.LQ 955 (2001). It was one of the grounds asserted by the U.S. District Court in Layton, supra n125, at 216. Section 9 Offences Against the Person Act 1861 – see the Cheong case concerning a murder in Guyana, BBC News website, 4132468.stm, 2005/08/08, 17:23:41: The Guardian p. 5, 9 AUG 2005. NB. According to the Divisional Court in R v Secretary of State for the Home Department, ex p. Miller, unreported, QBD 4 May 1999 , the British Home Secretary was right to authorise the surrender of the fugitive to the HKSAR even though a court in England could have prosecuted for manslaughter on the facts. See The Guardian p. 10, 2 JULY 1996; p. 6, 24 JULY 1996; p. 1, 2 NOV 1996; p. 15, 26 APR 1997; p. 3, 22 JAN 2000; p. 10, 19 JUN 2001. See also, the prosecution of those going to football matches overseas and committing crimes there that are then prosecuted upon their return – The Guardian p. 5, 21 JUN 2004; p. 5, 22 JUN 2004; p. 5, 25 JUN 2004. The Guardian p. 1, 15 JUL 2004; p. 4, 10 JAN 2004; p. 1, 20 FEB 2004; pp. 1 and 4, 10 MAR

Effecting the Response through International Criminal Procedures

85

European research has shown that there are wide variations in the application of this principle, with some States imposing an obligation of double criminality. The scope of the principle is clearly demonstrated by the decision in Public Prosecutor v Antoni.156 The accused, a Swedish national, was involved in a road trafﬁc accident in the Federal Republic of Germany. One of his defences when prosecuted in Sweden was that the Trafﬁc Code had never been intended to apply outside Swedish territory. The Supreme Court held that in principle that “every crime committed by a Swedish citizen may be punished, even if committed abroad”,157 although the purview of any penal provision may be territorially limited for special reasons.158 During the operation of UNPROFOR in the former Yugoslavia, Czech soldiers killed their Captain – the Czech authorities asserted jurisdiction, in part, on the basis of the active personality principle.159 The ambit of the active personality principle is, thus, extremely wide. Given that civil law States refuse, generally, to extradite their nationals, such breadth of competence is essential if fugitives are not to escape punishment merely by returning to their State of nationality.160 c. The Protective Principle Also known as compétence réelle, all States preserve to themselves the right to prosecute persons whose crimes damage the vital interests of the State. The problems with this principle of jurisdiction concern the ambit of vital interests; does it extend to cover protecting, for example, nationals injured abroad or the economic interests of the State. It can be distinguished from qualiﬁed territorial jurisdiction in that the latter requires either that an element of the offence takes place or the effects of the offence are felt in the State, whereas protective jurisdiction can be exercised whenever the State’s vital interests are damaged or challenged, even if the crime is committed outside of and its consequences have no direct effect within the State’s territory. nevertheless, there is an obvious area of overlap, as is seen in the United States case of Layton,161 where the accused killed a Congressman in Guyana. The alleged crimes certainly had an adverse effect upon the security or governmental functions of the nation, thereby providing the basis for jurisdiction under the protective principle. . . . The charges also suggest that the alleged offences were intended to

156 157 158 159

160

161

2004; p. 6, 12 MAR 2004. Part of the problem was that the human rights violations would probably have vitiated the admissibility of evidence obtained at the Guantanamo detention centre. 32 INT’L L REP.140 (Swedish Supreme Court, 1960). Ch. 1, Art. 1, Swedish Penal Code. Supra n156, at 146. Supra n122. See also, the prosecution of army ofﬁcers in Chile for crimes committed in Buenos Aires during the Pinochet era – The Guardian p. 14, 26 FEB 2003. NB. Israel refused the United States request for a dual U.S.-Israeli national, but then prosecuted him – The Guardian p. 16, 23 MAR 1999. Supra n125, at 216. See also, the potential request by Colombia for the staff of a Danish NGO accused of funding FARC – The Guardian p. 13, 26 OCT 2004.

86

Chapter 3 produce and did produce harmful effects within this nation, allowing a claim of jurisdiction under the ‘objective’ territorial principle.

Cases from several States reveal the scope of this principle. An example of activity that would constitute the pure protective principle might be where an accused disclosed a State’s international espionage activities in third countries whilst he was outside that State. In the Espionage Prosecution Case,162 the head of the former East German intelligence agency was prosecuted after the reuniﬁcation of Germany for spying against the former FRG – amongst many other issues, the court decided that he had violated the law of the former FRG through his activities, even though they had all been carried out in what had been, at that time, a separate State and had, in fact, been lawful there. The French case of In re Urios163 concerned a Spanish national who, during World War I and whilst in Spain, maintained contact with the enemies of France. He was arrested in 1919 and sentenced to twenty years imprisonment. The Cour de Cassation held that the conviction could be sustained because the substantive offence was not limited to French nationals or activity within the territory of France, and Article 7 of the then Code d’Instruction Criminelle provided that, any alien who . . . is guilty outside French territory of a crime against the security of the State is liable to prosecution and sentence under French law if he is arrested in France or if the Government obtains his extradition.164

The French understanding of the protective principle is now codiﬁed in Article 694,§1, of the Code de Procédure Pénal.165 Every alien who, outside the territory of the Republic, commits, either as principal or accomplice, a crime or delict against the security of the State or of counterfeiting the seal of the State or national currency in circulation, or a crime against French diplomatic or consular agents or missions is to be prosecuted and adjudged according to French law, whether he is arrested in France or the Government obtains his extradition.

English authority is not as clear, deriving from the unsatisfactory decision of Joyce v DPP.166 That House of Lords case concerned the issue of whether an alien could be guilty of the crime of treason in relation to acts committed outside the realm. The precise argument upon the applicability of the protective principle in English law 162 163 164

165 166

Case No. 2 Bgs 38/91 94 INT’L L REP.68 at 76–81 (German Federal Supreme Court). [1919–22] Ann.Dig.107. See, DONNEDIEU DE VABRES, LES PRINCIPES MODERNES DU DROIT INTERNATIONAL PENAL, at pp. 95 et seq. (1928). ENCYCLOPEDIE DALLOZ, (1985). Author’s transcription. [1946] AC 347 at 372.

Effecting the Response through International Criminal Procedures

87

was somewhat confused by the fact that the accused had been resident in the United Kingdom for some years and was travelling on a British passport when he entered enemy territory. Nevertheless, Lord Jowitt LC adopted a line of reasoning similar to that employed in the French case of Urios167 and held that the substantive offence was in no way limited to acts occurring in British territory, but that the individual need only be proved to owe allegiance to the Crown regardless of his nationality. The intention to operate the protective principle, if in an idiosyncratic formulation, can be gleaned from the judgment, although the case is not wholly appropriate on its facts. The later case of Somchai Liangsiriprasert168 indicated, obiter, that the courts will assume jurisdiction over terrorist or drugs offences that threaten the State, although the case was decided on the basis of the objective territoriality principle. It is arguable that the spirit of the language is wide enough to include offences the result of which is directly felt outside the territory of the State, although it is meant to have an impact on the vital interests of that State. An example might be the murder of a government minister while abroad as part of some terrorist campaign.169 The United States has a more developed jurisprudence in relation to the protective principle. Rocha v United States170 was a case of conspiracy to breach immigration rules by means of sham marriages. One of the charges was based on false statements made to consular ofﬁcials abroad (18 USC §1546), which offence, the defendants claimed, was beyond the jurisdictional competence of the U.S. courts. The court found that the offence was intended to have extraterritorial effect and went on to hold that a “sovereign State must be able to protect itself from those who attack its sovereignty”.171 Who can enter into a State is a matter of vital interest to the State. Congress passed the Omnibus Diplomatic Security and Anti-Terrorism Act in 1986. It gave the courts jurisdiction over any killing of a U.S. national if it was intended thereby to coerce, intimidate or retaliate against a government or civilian population.172 The objective of the legislation is to give the courts jurisdiction over purely terrorist offences.173 As such, it falls within the protective principle on the 167 168 169 170 171

172 173

Supra n163. Supra n135, and accompanying text. Viz. Layton, supra n125. 182 F.Supp 479 (1960); 288 F.2d 545 (1961). Supra n170, at 549. See also, United States v Suerte 291 F3d 366 at 370–71 (2002) – the court referred to jurisdiction over piracy as well as the protective principle in relation to drugs seized at sea. See 18 USC §2332. See the difﬁculties the U.S. had when seeking the extradition of the Achille Lauro sea-jackers who had killed a U.S. national; McGinley, The Achille Lauro Affair: A Case Study in Crisis Law, Policy and Management, at pp. 341–45 of BASSIOUNI, LEGAL RESPONSES, supra n9. The PLO paid an undisclosed amount by way of settlement to the dead man’s family without admitting liability twelve years later in 1997 – The Guardian p. 12, 13 AUG 1997.

88

Chapter 3

basis that terrorism is a challenge to the State. It also reveals the need for States to adopt the protective principle, which can easily be justiﬁed in international law as a protection of a State’s own interests.174 Finally, Israel has also adopted the protective principle when prosecuting Nazi war criminals. In Eichmann,175 the District Court of Jerusalem answered the problem that the victims of the holocaust were not Israeli citizens and, indeed, that the State of Israel had not existed between 1933 and 1945. Citing Dahm’s work, Zur Problematik des Voelkerstafrechts,176 the court held that jurisdiction under the protective principle required a ‘linking point’ between the punisher and the punished; subject to rules of international law to the contrary, States may punish those persons which concern it more than they concern other States.177 Therefore, given that the link between the Jewish people and the State of Israel was evident, Eichmann’s crimes against the Jewish people gave the court jurisdiction.178 The reasoning on the facts may be a little strained,179 but the principles enunciated on the application of protective jurisdiction are sound: there should be a linking point, indeed a substantial one, between the State and the accused, and the offence ought to concern the prosecuting State more than any other State. Under such circumstances the protective principle of extraterritorial jurisdiction is justiﬁable in international law and one of the objectives of international criminal law is upheld because the prosecuting State has most interest in bringing the accused to trial. d. The Passive Personality Principle While it used to receive little support in international law,180 it has gained in popularity in domestic judicial practice more recently. The principle purports to give extraterritorial jurisdiction to a State whenever one of its nationals, outside the territory of that State, is the victim of the offence. Unlike the U.S. 1986 Anti-Terrorism Act, which permits the U.S. to exercise the protective principle because the killing of the U.S. national was intended to inﬂuence the U.S. government, the passive personality principle would grant jurisdiction solely on the basis of the victim’s nationality. It is a very broad assertion of jurisdiction which may interfere with the sovereign status of the State where the crime occurred. In both the Lotus case181 and

174 175

176 177 178 179 180 181

See COUNCIL OF EUROPE, 1990, supra n105, at pp. 26–7. 36 INT’L L REP.5 (DC Jerusalem, 1961). See also Reiss, The Extradition of John Demjanjuk, 20 CORNELL INT’L LJ 281 at pp. 301–7 (1987). (1956) at p. 28. See para. 31 of the judgment. See also Mann [1964-I], supra n105, at pp. 49–51. Supra n175, at paras. 31–36. See Fawcett, The Eichmann Case, [1962] BRIT.YB.INT’L L 181 at pp. 190–92. See Harvard Research, supra n105. Supra n121. The dissent of the U.S. judge, Mr Moore, at 92 is instructive as to the traditional views of common law countries concerning the passive personality principle.

Effecting the Response through International Criminal Procedures

89

the Cutting case,182 the government of the State of which the accused was a national, France and the U.S.A. respectively, protested vigorously at the assumption of jurisdiction based on the passive personality principle. In Romania v Cheng,183 the Canadian court held that it could not extradite Taiwanese nationals to Romania where the crime had occurred on the high seas, even though the victims were Romanian, although the court’s interpretation of the term ‘jurisdiction’ was particularly narrow. Interestingly, though, in the light of the threat of international terrorism, France adopted its own version of the principle in 1975,184 in Art.689, §1, Code Procédure Pénal. While Head of State immunity ultimately proved decisive, France was prepared to consider prosecuting Colonel Gaddaﬁ of Libya for the 1989 explosion on the UTAAirlines plane.185 Spain issued warrants for the arrest of three United States soldiers who shelled a Baghdad Hotel during the invasion in 2003 killing a Spanish television cameraman.186 Italy issued warrants against military and State ofﬁcials from South America for crimes against Italians committed in 1970s and 1980s.187 An Assize Court in Rome convicted former Argentine General Suarez Mason in absentia in December 2000 for his part in the deaths of several Italians.188 In Layton,189 the District Court judge was tentative about its use, accepting it only because there were other, more acceptable principles of jurisdiction available for it to stand alongside; indeed, it was the assumed lack of jurisdiction over the Achille Lauro sea-jackers who had murdered a U.S. national overseas, that led to the 1986 Anti-Terrorism Act which relies on the protective principle.190 Part of the

182

183 184 185

186 187 188 189 190

Mexico, 1886. See MOORE, REPORT ON EXTRATERRITORIAL CRIME AND THE CUTTING CASE, (1887). Supra n81, at paras. 121 et seq. See Blakesley, Jurisdiction, supra n105, at pp. 172 et seq. Gaddaﬁ 125 INT’L L REP.490, esp. at 498 (C.de Cass., 2001). Article 689, §1, has been utilised beyond terrorism cases – see French request for Argentinean Astiz for his alleged involvement during the Dirty War in the murder of two French nuns (The Guardian p. 14, 17 SEP 2003) and the arrest warrants for ﬁfteen Chilean ofﬁcials for the deaths of French nationals during the Pinochet regime (The Guardian p. 18, 26 OCT 2001). BBC News website 4357684.stm, 2005/10/19 15:27:29. The Guardian p. 21, 17 MAR 2001. The Guardian p. 18, 7 DEC 2000. Supra n125, at 216. 18 USC §§2331, 2332. TITLE 18. CRIMES AND CRIMINAL PROCEDURE, CHAPTER 113B TERRORISM 18 USC 2332 (1997) (d) Limitation on prosecution. No prosecution for any offense described in this section shall be undertaken by the United States except on written certiﬁcation of the Attorney General or the highest ranking subordinate of the Attorney General with responsibility for criminal prosecutions that, in the judgment of the certifying ofﬁcial, such offense was intended to coerce, intimidate, or retaliate against a government or a civilian population. (emphasis added). Cf. Ahmad v Wigen 726 F.Supp 389 at 400–01 (1989). On the Achille Lauro, see supra n173.

90

Chapter 3

basis for jurisdiction in the Al-Fawwaz case191 was the passive personality principle. However, while also relying on the statutory implementation of the Hostage Taking Convention 1979,192 which provides for passive personality principle jurisdiction,193 the court in Yunis194 was prepared to recognize a general power to exercise this head of jurisdiction, at least where the State had a particularly strong interest in prosecuting. Nevertheless, the open-ended nature of the passive personality principle makes it difﬁcult to accept it for even the purpose of combating terrorism, especially since jurisdiction over such crimes may be upheld on the basis of the more widely accepted protective principle. e. The Representational Principle195 The idea behind this form of extraterritorial jurisdiction is that the State exercising it is ‘stepping into the shoes’ of a State with a more pressing claim to prosecute. It may be as a result of a request from this latter State, possibly under the European Convention on the Transfer of Proceedings in Criminal Matters,196 or as a result of a refusal to extradite. In the second instance, the State takes over the prosecution of the fugitive, either voluntarily or by virtue of an obligation in some multilateral, anti-terrorist convention. Clauses incorporating the principle aut dedere, aut judicare are now numerous197 in an attempt to avoid impunity through States not

191

192 193

194 195 196 197

Supra n115, per Lord Millett at paragraphs 110–12: If a conspiracy to plant bombs in England would be triable in England even though it was entirely inchoate and no bombs had yet been planted anywhere, a conspiracy to plant bombs in England and abroad where some bombs had already been planted abroad would be a fortiori. This is sufﬁcient to uphold the jurisdiction in the present case, since a conspiracy to murder British subjects because they were British and for no other reason must be a conspiracy to murder them wherever they might be found, whether in England or elsewhere; and such a conspiracy is (inter alia) a conspiracy to commit a crime in England. Moreover, while the point does not strictly arise for decision in the present case, I do not think that a deﬁnition of the offence which requires the prosecution to prove an intent to murder British subjects in England as opposed to elsewhere is either sensible or likely to prove to be stable. In my opinion, a conspiracy to plant bombs in British owned properties abroad and kill British subjects wherever they may be ought not to be the less triable in England because the conspirators do not plan to carry out their murderous campaign in England itself. Cf. paragraph 103, where Lord Millett expressly accepts that the United States does not assert jurisdiction on the basis of the nationality of the victims. 18 INT.LEG.MAT.1456 (1979). See Rees, supra n78, where the British court recognized German jurisdiction over a crime occurring in Bolivia because the victim was a German national. NB. The deﬁnition of hostage taking in Article 1(1) is such that the State might be able to assert protective principle jurisdiction, too. See also, the United Kingdom investigation of former Iraqi foreign minister Tariq Aziz in 2001 under the Taking of Hostages Act 1982 – The Guardian p. 15, 25 APR 2001; p. 15, 26 APR 2001. There is no general head of passive personality principle jurisdiction in English law according to the House of Lords in R v Bartle and the Commissioner of Police for the Metropolis and others, ex p.Pinochet [2000] 1 AC 61 at 87, per Lord Lloyd. United States v Yunis 924 F.2d 1086 at 1091 (1991). See p. 14 of COUNCIL OF EUROPE, 1990, supra n105. ETS 73, 1972. E.g. Arts. 6 and 7 of the European Convention on the Suppression of Terrorism, 1977, ETS 90.

Effecting the Response through International Criminal Procedures

91

having power to prosecute a fugitive simply because he has crossed a border and where his extradition is refused. Another example of representational jurisdiction is seen in the reciprocal legislation promulgated by the British and Irish parliaments to allow for trial of persons in either State for a series of listed offences likely to be committed as part of the conﬂict in Northern Ireland.198 Given that evidence may well have to be provided by the State not being given jurisdiction over the fugitive, the representational principle is a consensual assumption of the right to prosecute. Self-evidently, the representational principle overlaps considerably with universal jurisdiction. f. Universal Jurisdiction199 The adoption of the principle of universality gives the court competence over any offence committed anywhere in the world. Thus, it is only in rare cases that it will be justiﬁed, some of which, as stated, overlap with the representational principle. Universal jurisdiction is established by customary international law and by conventions. According to Lord Millett in the third Pinochet judgment.200 In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisﬁed. First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. Isolated offences, even if committed by public ofﬁcials, would not satisfy these criteria.

Since the beginnings of international law as it is known today, piracy has been recognised as a crime subject to the universality principle.201 The four Geneva Conventions of 1949 and Additional Protocol I of 1977202 provide for mandatory universal jurisdiction over grave breaches. The Tadi,c 203 judgment before the Appeals Chamber made it clear, obiter, that universal jurisdiction exists for serious

198 199

200

201

202

203

See the British Criminal Jurisdiction Act 1975, and the Irish Criminal Law (Jurisdiction) Act 1976. See Randall, Universal Jurisdiction under International Law, 66 TEXAS L REV.785 (1988); REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES (2003); Amnesty International, Universal Jurisdiction: the duty of States to enact and implement legislation, AI Index: IOR 53/002-018/2001, September 2001; various authors, 1:3 JICJ 579–602 (2003); O’Keefe, Universal Jurisdiction: Clarifying the basic concept, 2 JICJ 735. R v Bartle and the Commissioner of Police of the Metropolis, ex p.Pinochet [1999] 2 All ER 97 at 177. See, Blakesley, Jurisdiction, supra n105, at pp. 142 et seq. and White, The Marshall Court and International Law: The Piracy Cases, 83 AM.J INT’L L 727 (1989). 75 UNTS 31–417 (1950); 1125 UNTS 609, 16 INT.LEG.MAT.1391 (1977). See Chapter Seven below. Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No. IT-94-1-AR72 (1995), per Cassese J., at paras. 9–48. At the subsequent trial on the merits, he was found guilty on eleven counts.

92

Chapter 3

violations of the laws and customs of war, crimes against humanity and genocide.204 The various United Nations sponsored, multilateral, anti-terrorist conventions205 grant jurisdiction over a variety of transnational fugitive offenders, based simply on their presence in the State.206 Universal jurisdiction raises several related issues, such as the nature of the universal jurisdiction, whether there is a duty to prosecute and whether immunity should vitiate jurisdiction over such crimes. As mentioned, universal jurisdiction is mandatory for grave breaches of the Geneva Conventions and Protocol I, but for no other crimes. All other universal jurisdiction is permissive.207 156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treatymaking power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes.208 (emphasis added)

However, a duty to prosecute might still apply to a crime over which there is permissive universal jurisdiction. As the International Committee of the Red Cross propounds,209 while mandatory universal jurisdiction requiring States to search for

204

205

206

207

208

209

With respect to genocide, this must be as a result of custom – see Articles VI and VII. See, in general, Chapter Seven. In Yunis, supra n194, the court also held it had universal jurisdiction courtesy of the Hostages Convention and the Hijacking Conventions – at 1091. Given the large number of signatories to these multilateral conventions, if a fugitive is charged with an offence established by one of them, then it is unlikely that a State would lack jurisdiction even if, generally, its courts have a strictly limited competence over crimes beyond its territory. See also Chapter Five below. See the Zardad case, where an Afghan warlord was prosecuted in the United Kingdom for torture and hostage taking in Afghanistan – The Guardian p. 2, 19 JUL 2005. There is much evidence that United Nations peacekeeping missions and peace support operations have been used to facilitate trafﬁcking in people, mainly women and children for the purpose of sexual exploitation (see A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations, UN Doc.A/59/710, 24 March 2005, and Report of the Secretary-General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, UN Doc.A/59/782, 15 April 2005). It is notable that the trafﬁcking related to the UN Mission in Kosovo did not lead to prosecutions in Kosovo or in the country of nationality of suspects working for UNMIK or KFOR – The Guardian p. 23, 9 MAY 2003; p. 14, 7 MAY 2004. Prosecutor v FurundÌzija, IT-95-17/1-T 10, ICTY Trial Chamber, 10 December 1998, at paragraphs 153 et seq., esp. paragraph 156. See HENCKAERTS AND DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005), Rule 158, pp. 607–10.

Effecting the Response through International Criminal Procedures

93

suspects and to try or extradite them only applies to grave breaches in international armed conﬂicts, the obligation to investigate and prosecute other war crimes is found in other treaties and in military manuals. Furthermore, States may have an obligation to investigate and prosecute a crime under international human rights law obligations.210 However, the reach of that obligation may not be coterminous with universal jurisdiction, it depends on domestic law.211 Nevertheless, given the nature of the crimes over which universal jurisdiction is exercised, the State may be under an obligation to prevent impunity even if it cannot prosecute – indeed, that failure may leave it liable in international law. As the Cairo-Arusha Principles on Universal Jurisdiction in respect of Gross Human Rights Offences: An African Perspective212 make clear, the lack of domestic legislation may not be relied upon as an excuse: 5. The absence of speciﬁc enabling domestic legislation does not relieve any State of its international legal obligation to prosecute, extradite, surrender or transfer suspects to any State or international tribunal willing and able to prosecute such suspects. 6. The principle of non-interference in the internal affairs of States . . ., shall be interpreted in light of the well established and generally accepted principle that gross human rights offences are of legitimate concern to the international community, and give rise to prosecution under the principle of universal jurisdiction. 19. A State in whose territory a gross human rights offence suspect is found shall prosecute him or her in good faith or extradite or surrender him or her to any other State or international tribunal willing and able to prosecute such suspect. The absence of an extradition treaty or other enabling legislation shall not bar the extradition, surrender or transfer of such a suspect to any State or international tribunal willing and able to prosecute the suspect. 210

211

212

See Nachova v Bulgaria, App.Nos.43577/98, 43579/98 (European Court of Human Rights, Grand Chamber), 6 July 2005. The United Nations Convention Against Torture, 1984, 23 INT.LEG.MAT.1027 (1984) and 24 INT.LEG.MAT.535 (1985), requires States party to ensure all acts of torture are criminalised (Article 4) and to establish jurisdiction over Article 4 offences: Article 5.2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article. However, the United Nations does not ratify treaties it promulgates, so, despite the fact that it is administering Kosovo (viz. UNSC Res. 1244, 1999), the United Nations Mission in Kosovo is not directly bound by the Torture Convention. As such, the fact that it allowed an alleged torturer on its staff to return to his home country where he was effectively immune, cannot leave it liable in international law, although it is arguable that the principle of aut dedere, aut judicare is customary international law binding on international organizations. Cf. The Guardian p. 12, 14 JUL 2003 (where cost was cited as a ground for not prosecuting); p. 18, 3 OCT 2003. See Luxembourg Court of Appeal holding in relation to Pinochet that there was no rule of customary international law recognizing universal jurisdiction for crimes against humanity – 119 INT’L L REP.360 at 363–64 (1999). See http://www.aﬂa.unimaas.nl/en/pubs/quarterly/Final%20Summary.doc. Principles 3 and 4 apply the Principles to crimes under the Rome Statute of the International Criminal Court, 37 INT.LEG.MAT.999 (1998), and to “certain other crimes that have major adverse economic, social or cultural consequences – such as acts of plunder and gross misappropriation of public resources, trafﬁcking in human beings and serious environmental crimes”.

94

Chapter 3

The Princeton Principles on Universal Jurisdiction 2001213 provide similarly: Principle 4 – Obligation to Support Accountability 1. A state shall comply with all international obligations that are applicable to: prosecuting or extraditing persons accused or convicted of crimes under international law in accordance with a legal process that complies with international due process norms, providing other states investigating or prosecuting such crimes with all available means of administrative and judicial assistance, and undertaking such other necessary and appropriate measures as are consistent with international norms and standards. Principle 11 – Adoption of National Legislation A state shall, where necessary, enact national legislation to enable the exercise of universal jurisdiction and the enforcement of these Principles.

These sets of Principles also deal with amnesties.214 In both cases they provide that amnesties for the sorts of crimes attracting universal jurisdiction are generally 213

214

http://www1.umn.edu/humanrts/instree/princeton.html. The pertinent crimes are listed in Principle 2: Principle 2 – Serious Crimes Under International Law 1. For purposes of these Principles, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture. 2. The application of universal jurisdiction to the crimes listed in paragraph 1 is without prejudice to the application of universal jurisdiction to other crimes under international law. See also Principles 23 and 25 of the Joinet Principles, The Administration of Justice and the Human Rights of Detainees: Question of the impunity of perpetrators of human rights violations (civil and political) – Revised ﬁnal report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997: PRINCIPLE 23. NATURE OF RESTRICTIVE MEASURES – Safeguards must be introduced against any abuse for purposes of impunity of rules pertaining to prescription, amnesty, right to asylum, refusal to extradite, absence of in absentia procedure, due obedience, repentance, the jurisdiction of military courts and the irremovability of judges. PRINCIPLE 25. RESTRICTIONS AND OTHER MEASURES RELATING TO AMNESTY – Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) The perpetrators of serious crimes under international law may not beneﬁt from such measures until such time as the State has met the obligations referred to in principle 18; (b) They shall be without effect with respect to the victims’ right to reparation, as referred to in principles 33 to 36; (c) Insofar as it may be interpreted as an admission of guilt, amnesty cannot be imposed on individuals prosecuted or sentenced for acts connected with the peaceful exercise of their right to freedom of opinion and expression. When they have merely exercised this legitimate right, as guaranteed by articles 18 to 20 of the Universal Declaration of Human Rights and 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights, the law shall consider any judicial or other decision concerning them to be null and void; their detention shall be ended unconditionally and without delay; (d) Any individual convicted of offences other than those referred to in paragraph (c) of this principle who comes within the scope of an amnesty is entitled to refuse it and request a retrial, if he or she has been tried without beneﬁt of the right to a fair hearing guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights and articles 9, 14 and 15 of the International Covenant on Civil and Political Rights, or if he or she has been subjected to inhuman or degrading interrogation, especially under torture.

Effecting the Response through International Criminal Procedures

95

inconsistent with the State’s international obligations to provide accountability. The Cairo-Arusha Principles speciﬁcally provide that any such amnesty will have no affect beyond the borders of the State granting it.215 Princeton Principle 5 also addresses immunities. With respect to serious crimes under international law as speciﬁed in Principle 2(1), the ofﬁcial position of any accused person, whether as head of state or government or as a responsible government ofﬁcial, shall not relieve such person of criminal responsibility nor mitigate punishment.

However, on this matter, it has been overtaken by the decision of the ICJ in The Arrest Warrant Case.216 In that case, a Belgian magistrate exercising a broad domestic law on universal jurisdiction issued an international warrant against the then foreign minister of the Democratic Republic of Congo, Abdulaye Yerodia Ndombasi, for serious violations of international humanitarian law. Mr Yerodia had no connection with Belgium at that time. The DRC objected in part on the basis that this violated State immunity since it impaired the ability of the foreign minister to carry out his work. The majority on the ICJ found that the arrest warrant was not valid in international law, but the reasoning is confused. The judgment focuses on immunity and holds at paragraph 61 that a minister of foreign affairs, along with the Head of State and head of government have total immunity unless either (i) her/his own State prosecutes, (ii) immunity is waived by the State that they represent, (iii) s/he stops being the relevant ofﬁcial,217 or (iv) the trial is to take place before an international court, for example, the International Criminal Court.218 215 216

217 218

See Cairo-Arusha Principle 15 and Princeton Principle 7. Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium), ICJ 2002, General List No. 121. See Cassese, When May Senior State Ofﬁcials be Tried for International Crimes? Some Comments on the Congo v Belgium Case, 13 EJIL 853 (2002); Wirth, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v Belgium Case, 13 EJIL 877 (2002); Wickremasinghe, Arrest Warrant of 11 April 2000 (DRC v Belgium), Preliminary Objections and Merits Judgment of 14 February 2002, 52 INT’L & COMP.LQ 775 (2003); McLachlan, Pinochet Revisited, 51 INT’L & COMP.LQ 959 (2002). Turns, Certain Criminal Proceedings in France (Republic of Congo v France), Provisional Measures, Order of 17 June 2003, 53 INT’L & COMP.LQ 747 (2004). Senator Pinochet was a former Head of State – supra n200. The Special Court for Sierra Leone issued a warrant for the arrest of the then President of Liberia, Charles Taylor. on 7 March 2003. From exile, Charles Taylor challenged the validity of the warrant, in part on the basis that the SCSL had no authority to issue it because it was not an international court as called for in the Arrest Warrant Case – Prosecutor v Taylor, SCSL-2003-01-I, Appeals Chamber, 31 May 2004. Unlike the Yugoslav and Rwanda Tribunals, the SCSL was not established through a Chapter VII Resolution, but rather through an agreement between the government of Sierra Leone and the United Nations pursuant to Security Council Resolution 1315 (2000). The SCSL, as Mandy Rice-Davies might have predicted, decided it was an international court and that it had jurisdiction, relying on the fact UN-Sierra Leone agreement resulted from SC Res. 1315 (2000) – see paragraphs 37–42. However, UNSC Res. 1315 is not a Chapter VII Resolution and just because the SCSL is not a national court of Sierra Leone, does not necessarily entail that it must be an international court as envisaged by the ICJ in the Arrest

96

Chapter 3

Judge Guillaume, President, went on to hold that universal jurisdiction was only accepted in international law where there was some connection with the State wishing to prosecute, calling into question universal jurisdiction in absentia. However, according to the separate opinion of Higgins, Kooijmans and Buergenthal JJ., there is considerable strength in opposing view given that: (i) there is no rule of international law outlawing universal jurisdiction; (ii) the burgeoning use of aut dedere, aut judicare in various treaties dealing with international criminal law; and (iii) the special rules attaching to grave breaches and, although to a lesser extent, other serious violations of the laws of armed conﬂict and crimes against humanity. As they make clear at paragraph 58 of their separate opinion: If the underlying purpose of designating certain acts as international crimes is to authorize a wide jurisdiction to be asserted over persons committing them, there is no rule of international law (and certainly not the aut dedere principle) which makes illegal co-operative overt acts designed to secure their presence within a State wishing to exercise jurisdiction.

On this point, that universal jurisdiction can be exercised subject to certain safeguards in absentia, the views of Judges Higgins, Kooijmans and Buergenthal better reﬂect current thinking and practice. In the light of the Arrest Warrant Case, it is clear that an acting Head of State, head of government or minister of foreign affairs is immune apart from in the four situations speciﬁed in paragraph 61 of the Court’s judgment. As such, the French Cour de Cassation was right to hold Colonel Gaddaﬁ of Libya to be immune.219 The Belgian law that gave rise to the Arrest Warrant Case was also used to issue warrants against acting Heads of State or government. Ultimately, the Belgian courts rejected jurisdiction over Ariel Sharon, Prime Minister of Israel, because he was not in the country, not because of his immunity,220 but his immunity would now be recognised.221 Following The Arrest Warrant Case, Belgium amended its domestic law so that it was not as far reaching.222 However, Belgium’s change of attitude

219 220

221

222

Warrant Case. It is a hybrid court founded by a bilateral treaty drafted by the Secretary-General on behalf of the United Nations and the government of Sierra Leone – it is not self-evident that it can vitiate the immunity of the head of a third State not party to the agreement. Nevertheless, such a debate is probably moot since there is nowhere to challenge the ﬁnding of the Appeals Chamber. Supra n185. See The Guardian p. 11, 19 JUN 2001; p. 20, 15 FEB 2002; p. 17, 27 JUN 2002. And see Cassese, The Belgian Court of Cassation v the International Court justice: the Sharon and others Case, 1 JICJ 437 (2003). A warrant was unsuccessfully sought in the United Kingdom for torture against President Mugabe of Zimbabwe – The Guardian p. 6, 8 JAN 2004. Although not necessarily protected by the judgment in the Arrest Warrant Case, the Israeli Defence Minister has been informed that he is safe from prosecution for crimes against humanity in the United Kingdom under principles of universal jurisdiction (The Guardian p. 19, 11 FEB 2004) – cf. the Israeli military chief of staff (The Guardian p. 17, 16 SEP 2005). See Reydams, Belgium Reneges on Universality: the 5 August 2003 Act on Grave Breaches of

Effecting the Response through International Criminal Procedures

97

and the decision of the ICJ should not obscure the growing and proper use of universal jurisdiction with respect to those guilty of international crimes who do not have immunity.223 The Zardad case224 concerned prosecution in the United Kingdom for torture and hostage taking in Afghanistan. A Swiss Military Tribunal using the Swiss Military Penal Code had jurisdiction over a Bosnian Serb in relation to allegations that he had committed violations of the laws and customs of war in Bosnia-Herzegovina against other Bosnians.225 The Tribunal found the conﬂict to be international in Bosnia-Herzegovina, asserting universal jurisdiction under the Geneva Conventions of 1949. In Jorgi,c,226 a regional court in Germany sentenced the accused, a Bosnian Serb, for acting as an accessory to genocide with respect to crimes committed in Bosnia-Herzegovina. Austria, too, commenced the prosecution of the deputy chairman of the Revolutionary Council of Iraq, Saddam Hussein’s cabinet, for torture.227 Moreover, unlike Belgium, Spain has maintained its prosecution of those accused of international crimes under the principle of universal jurisdiction. Indeed, the investigation and prosecution of those involved in Operation Condor in the 1970s would not have been maintained without the active efforts of the Spanish judiciary.228 In 2005, a Spanish court convicted Adolfo

223

224

225

226

227 228

International Humanitarian Law, 1 JICJ 679 (2003). Nevertheless, an international arrest warrant was issued for the former President of Chad, Hissene Habré – The Guardian p. 18, 30 SEP 2005 The Senegalese court, however, refused to recognize Belgium’s jurisdiction – The Guardian p. 21, 26 NOV 2005. NB. It should be recognised that Belgium properly exercised universal jurisdiction on several occasions – see the Butare Four case regarding genocide in Rwanda, dealt with in Reydams, Belgium’s First Application of Universal Jurisdiction: the Butare Four Case, 1 JICJ 428 (2003). And see, The Guardian p. 17, 10 MAY 2005; p. 15, 30 JUN 2005. Supra n206. See also, Redress Press Release of 8 October 2004, “UK must not be a safe haven for torture”. The Guardian p. 11, 9 OCT 2004; p. 6, 19 NOV 2004; p. 12, 26 NOV 2004. It transpires that the former and current Israeli military chief of staff have both decided not to come to the United Kingdom because of outstanding warrants taken out by lawyers acting on behalf of Palestinians – The Guardian p. 17, 16 SEP 2005. See In re G, Military Tribunal, Division 1, Lausanne, Switzerland, 18 April 1997, as noted by Ziegler, 92 AM.J INT’L L 78 (1998). Oberlandersgericht Düsseldorf, 26 September 1997. See Schabas, National Courts Finally Begin to Prosecute Genocide, the ‘Crime of Crimes’, 1 JICJ 39 at 58 (2003). The Iraqis managed to ﬂee during the trial – The Guardian p. 13, 1 AUG 1999. Operation Condor was conducted by the right wing governments of Argentina, Bolivia, Brazil, Chile, Paraguay, and Uruguay in the mid-1970s against their political opponents. Judge Baltasar Garzon in Spain has been the principal advocate of universal jurisdiction in these cases, although he has not always enjoyed universal support from his fellow judges of the government. In 2003, the then Spanish Prime Minister refused to endorse a request for Agentinian soldiers from the Dirty War era resulting in their release, although it was argued that this was because the removal of the Argentinian amnesty meant they could be prosecuted there – The Guardian p. 18, 30 AUG 2003; p. 22, 3 SEP 2003. See also, Asensio, Are Spanish Courts Backing Down on Universality? The Supreme Tribunal’s Decision in ‘Guatemalan Generals’, 1 JICJ 690 (2003). Cf. The Spanish Constitutional Court has ruled that universal jurisdiction takes precedence over national interests and that “Spain should investigate crimes of genocide, torture, murder and illegal imprisonment committed in Guatemala between 1978 and 1986” – BBC News website 4313664.stm, 2005/10/05 17:34:22.

98

Chapter 3

Scilingo, a former Argentine naval ofﬁcer of crimes against humanity committed in the Dirty War.229 Furthermore, Mexico was prepared to extradite an alleged Argentine torturer to Spain for prosecution in respect of crimes committed during the Dirty War.230 Most notably, the United Kingdom was prepared to extradite Senator Augusto Pinochet Ugarte to Spain in relation to torture, a case addressing universal jurisdiction and immunity for former Heads of State.231 Senator Pinochet came to the United Kingdom for medical treatment, but whilst here a request was made by a Spanish judge232 for his extradition with respect to, inter alia, torture carried out while he was President of Chile.233 The case turned on whether he had immunity for those crimes and, if he did not, whether there was double criminality under the English approach to jurisdiction over extraterritorial crimes. Double criminality is discussed below, but in this case it focused solely on when there was universal jurisdiction under the United Nations Convention Against Torture. Arguably, universal jurisdiction over torture existed under customary international law at least from the United Nations General Assembly Declaration on Torture in 1975.234 According to Lord Millett in Pinochet 3: In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already pos-

229

230

231

232

233

234

BBC News website 4173215.stm, 2005/01/14, 15:25:21; 4460871.stm, 2005/04/1, 15:21:02. See also Tomuschat, Issues of Universal Jurisdiction in the Scilingo Case, 3 JICJ 1074 2005); Gil Gil, The Flaws of the Scilingo Judgment, 3 JICJ 1082 (2005); Pinzauti, An Instance of Reasonable Universality: the Scilingo Case, 3 JICJ 1092 (2005). See HRW Press Release, Mexican Foreign Minister’s Decision to Extradite Argentine Torturer Hailed, 3 February 2001; The Guardian p. 14, 30 JUN 2003; p. 20, 19 JUL 2003; BBC News website 4708891.stm, 2005/07/22, 18:43:12. R v Bartle and the Commissioner of Police for the Metropolis and others, ex p.Pinochet [1998] 4 All ER 897, [2000] 1 AC 61 (Pinochet 1); R v Bartle and the Commissioner of Police of the Metropolis, ex p.Pinochet [1999] 2 All ER 97 (Pinochet 3). Pinochet 2, R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, dealt with the question of whether Lord Hoffman should have recused himself in Pinochet 1 and, holding that he should have done so, set in motion Pinochet 3. See generally, WOODHOUSE, THE PINOCHET CASE: A LEGAL AND CONSTITUTIONAL ANALYSIS, 2000; ASIL Proc. 1999–2000, pp. 346–423; Fox, The First Pinochet case: Immunity of a Former Head of State, 48 INT’L & COMP.LQ 207 (1999); Fox, The Resolution of the Institute of International Law on the Immunities of Heads of State and Government, 51 INT’L & COMP.LQ 119 (2002); Warbrick, Immunity and International Crimes in English Law, 53 INT’L & COMP.LQ 769 (2004); Zappalà, Do Heads of State in Ofﬁce Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddaﬁ Case Before the French Cour de Cassation, 12 EJIL 595 (2001). Other States subsequently expressed an interest in prosecuting him, too. See volume 119 of the International law Reports for comprehensive coverage of the cases from several jurisdictions. Since Pinochet had come to power through a coup on 11 September 1973, there was a certain vagueness as to when he took over as Head of State. It was agreed, however, that he was President by 26 June 1974. UNGA Res.3452 (XXX), 9 December 1975.

Effecting the Response through International Criminal Procedures

99

sessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it.235

Nevertheless, Lord Millett conceded that the rest of the House accepted there was jurisdiction only from that time when Chile, Spain and the United Kingdom had ratiﬁed the 1984 Convention Against Torture – effectively, 8 December 1988. The reasoning was that torture only became an extraterritorial crime for the United Kingdom in September 1988 with the passing of s134 of the Criminal Justice Act 1988 and it was only upon the ratiﬁcation of the 1984 Convention that Senator Pinochet could no longer claim immunity. A current Head of State has immunity ratione personae because s/he represents the State itself; a former Head of State only has immunity ratione materiae, immunity for his ofﬁcial acts while in ofﬁce.236 The majority of the House of Lords concluded that with the ratiﬁcation of the Convention Against Torture, it could not be claimed that torture was an ofﬁcial act. Under Article 1 of the Convention, torture, as deﬁned, has to be inﬂicted “by or at the instigation of or with the consent or acquiescence of a public ofﬁcial or other person acting in an ofﬁcial capacity”. Article 5.2 requires States party to assume jurisdiction over anyone accused of Article 4 crimes who is found within their territory. As Lord Browne-Wilkinson explained: I have doubts whether, before the coming into force of the Torture Convention, the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as performance of an ofﬁcial function. At that stage there was no international tribunal to punish torture and no general jurisdiction to permit or require its punishment in domestic courts. Not until there was some form of universal jurisdiction for the punishment of the crime of torture could it really be talked about as a fully constituted international crime. But in my judgment the Torture Convention did provide what was missing: a worldwide universal jurisdiction. Further, it required all member states to ban and outlaw torture: Article 2. How can it be for international law purposes an ofﬁcial function to do something which international law itself prohibits and criminalises? Thirdly, an essential feature of the international crime of torture is that it must be committed ‘by or with the acquiescence of a public ofﬁcial or other person acting in an ofﬁcial capacity’. As a result all defendants in torture cases will be state ofﬁcials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army ofﬁcers) who carried out his orders will be liable. I ﬁnd it impossible to accept that this was the intention.237

235 236

237

Supra n231 at 178. In Marcos and Marcos v Federal Department of Police 102 INT’L L REP.198 (Swiss Fed Trib, 1989), The Philippines waived the immunity of the former President. Supra n231 at 114.

100

Chapter 3

It is difﬁcult to concede that torture was ever looked upon as an ofﬁcial act when no State ever publicly acknowledged that it was an accepted practice.238 As such, the whole premise for immunity being lost on 8 December 1988 is undermined. It may be that the United Kingdom only had domestic laws in place from September 1988 to prosecute torture that had occurred outside its territory, but it was undoubtedly the case that torture on the scale perpetrated in Chile in the period 1973–77 was a crime “according to the general principles of law recognized by the community of nations”.239 The Amsterdam Court of Appeal was faced with this issue in the Bouterse case.240 The former Head of State of Surinam was charged, inter alia, with torture and the issue of retroactivity was argued as a defence. 6.4 . . . if the Dutch court applied the Act against Torture retrospectively to the prosecution and trial of Bouterse on the basis of universal jurisdiction – which the Court of Appeal believes is not only possible but also appropriate – Article 15 of the International Convention on Civil and Political Rights would not be violated. This article provides, in so far as relevant here, that the principle of legality does not ‘prejudice the trial and punishment of any person for any act or omission which at the time it was committed, was criminal according to the general principles of law recognized by the community of nations.’ 6.5 Considering all the foregoing, it can therefore not be judged that prosecution, trial and, possibly, punishment of Bouterse would offend the principle of legality and/or that Bouterse could not have considered that he would be prosecuted outside Surinam, especially in the Netherlands, at some point in time.

On the other hand, the Court of Appeal of Dakar and the Cour de Cassation were less progressive. In the Habré case,241 the former President of Chad was charged in Senegal with having committed torture and crimes against humanity. The court found that the lack of domestic legislation implementing the Convention Against Torture nor any procedural laws recognizing Senegal’s universal jurisdiction to prosecute and punish torture committed extraterritorially by non-citizens meant that the case failed. Nevertheless, as with the Bouterse case, the recognition of torture as an international crime242 alone should have determined the issue for the House of Lords in Pinochet as to whether it was an ofﬁcial act of the then President of

238

239

240

241

242

See RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW, 2nd ed. 1999. Article 15.2 International Covenant on Civil and Political Rights, providing an exception to the non-retroactivity of criminal law. Beschikking (decision) of 20 November 2000 by the section charged with dealing with civil matters on the complaint – Petition numbers R 97/163/12 Sv and R 97/176/12 Sv. Habré, 125 INT’L L REP.569 at 579. Habré has now been requested by Belgium – The Guardian p. 18, 30 SEP 2005. A request for the former Iranian Ambassador by Argentina for alleged involvement in terrorism failed for lack of evidence – The Guardian p. 4, 23 AUG 2003; p. 9, 25 AUG 2003; p. 13, 30 AUG 2003; p. 12, 14 NOV 2003.

Effecting the Response through International Criminal Procedures

101

Chile;243 more difﬁcult is the question of whether double criminality depends on the law in force in the requested State at the time of the request or the time when the crime was committed. The growth of universal jurisdiction since the end of the Second World War is an indication of the developments in international criminal law and mutual assistance in criminal matters.244 Its limitless scope renders all other forms of jurisdiction superﬂuous, but traditionally it was rare for it to be exercised where some other principle would not also apply. For instance, in the Eichmann case, universal jurisdiction was asserted alongside the protective and passive personality principles.245 Nevertheless, some linkage usually exists, often the fact that the victims of the crimes or their relatives are now resident in the State asserting jurisdiction. In conclusion, there is an overlap between qualiﬁed territorial jurisdiction and extraterritorial jurisdiction and between the differing principles of extraterritorial jurisdiction. That two States might recognise the authority to prosecute an offender for a crime with cross-frontier aspects on different grounds, should be of no consequence. The only question concerning the requesting State’s simple competence to prosecute in extradition hearings is whether under its own law it has jurisdiction.246 It may be that due to the principle of double criminality, the fugitive cannot be surrendered, as will be discussed below, but there need not be identity of principles of jurisdiction for the extradition court to concede competence.

6.3 Double Criminality The essence of double criminality is that the fugitive should not be returned unless his actions could be prosecuted in either the requesting or, mutatis mutandis, the requested State. His activity should be criminalised in both States. With respect to most societies, this requirement poses no difﬁculties; every State condemns 243

244

245 246

Senator Pinochet was never surrendered to Spain because it was deemed he would be unﬁt to stand trial. Following his return to Chile, his immunities have been challenged and he presently faces several charges, some relating to the torture from his time in power and others concerning ﬁscal matters. As court appearances approach, his health seems to deteriorate. See The Guardian G2 pp. 14 and 15, 6 FEB 2002; The Guardian p. 18, 5 DEC 2003; pp. 1 and 2, 29 MAY 2004; p. 16, 27 AUG 2004; p. 12, 1 SEP 2004; p. 18, 2 OCT 2004; p. 17, 15 NOV 2004; p. 17, 3 DEC 2004; p. 2, 14 DEC 2004; p. 16, 15 DEC 2004; p. 11, 21 DEC 2004; p. 12, 5 JAN 2005; p. 14, 6 JAN 2005; p. 3, 20 MAY 2005; BBC News website, 4070598.stm, 2005/06/07, 20:17:15; 4116874.stm, 2005/06/21, 22:42:30; 4657509.stm, 2005/07/05 16:37:05. Cf. The Guardian p. 18, 25 MAR 2005; BBC News website, 4380123.stm, 2005/03/24 16:08:09; 4357890.stm, 2005/10/19 16:30:40; 4444258.stm, 2005/11/16 22:22:23; 4463894.stm, 2005/11/23 16:42:09; 4468752.stm, 2005/11/25 05:51:43; 4502348.stm, 2005/12/06 11:24:44; 4561038.stm, 2005/12/26 17:26:47; 4632562.stm, 2006/01/20 17:14:42; 4672252.stm, 2006/02/01 22:38:27. See Swaak-Goldman, Recent Developments in International Criminal Law: Trying to Stay Aﬂoat between Scylla and Charybdis, 54 INT’L & COMP.LQ 691 at 697–700 (2005). Supra n175, at paras.12 and 31 et seq. Re Reyat’s Application for a Writ of Habeas Corpus, unreported, QBD, CO/1157/88, MWC, 22 March 1989.

102

Chapter 3

homicides and dishonesty offences.247 However, even within the relatively homogenous European Community there are different cultural attitudes to certain offences. Simple examples are the permissive attitude towards cannabis use in the Netherlands, the greater tolerance to certain forms of pornography in Germany, the very tough stand taken by Greek courts against hooliganism. . . . Even in those areas where there has been considerable international consensus, such as drug trafﬁcking, there are differences in the ‘extent to which they enforce the law and the manner in which they enforce the law’.248

The ﬁrst issue to be considered is whether the double criminality requirement has become a rule of customary international law, obligatory in all extradition arrangements and to be implied where it is not expressly included. In the Swiss case of M v Federal Department of Justice and Police,249 the Federal Tribunal held that double criminality was a tacit precondition for all extradition cases, even where the treaty was not express on the matter. The Irish case of The State (Furlong) v Kelly250 held that the requirement of double criminality was “fundamental to extradition”. Academic commentators earlier this century were of much the same opinion. The Harvard Research in International Law from 1935 and Oppenheim’s International Law from 1955251 both make it clear that apart from some special cases, . . . no person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition.

However, the 1985 Australian case of Riley v The Commonwealth of Australia252 held that positive legislation or treaty provisions could expressly exclude the requirement; it was no more than a guide to interpretation to municipal law. It would seem that its omission will be rectiﬁed, but that it can be ousted by speciﬁc language.253 247

248

249 250 251

252 253

Cf. Russia failed to obtain the extradition of Vladimir Gusinsky from Greece because an appeals court held his actions did not constitute a crime even though he was wanted for an alleged multimillion dollar fraud. Regardless of the reason given, it seems the evidence was weak – The Guardian p. 17, 15 OCT 2003. HCP-I, para.96, supra n2. See also, the extradition from Dubai to Saudi Arabia for crimes related to the sale of alcohol – The Guardian p. 3, 8 FEB 2001. 75 INT’L L REP.107 (Federal Tribunal, 1979). Per O’Dálaigh CJ in The State (Furlong) v Kelly [1971] IR 132 at 141. Cited in Riley v The Commonwealth of Australia, (1985), 159 CLR 1 at 11–12. The quotation is taken from OPPENHEIM at p. 701 (8th ed., 1955). Supra n251, at 12. The Convention Relating to Extradition between the Member States of the European Union, 1996 OJ C 313 (Explanatory Report, 197 OJ C 191) provided for loose application of the principle of double criminality in relation to ﬁscal offences in Article 6. Now superseded by the EAW, supra n87.

Effecting the Response through International Criminal Procedures

103

Before considering problems to do with its application, it is worth questioning whether the requirement is appropriate. If it were to be accepted that extradition is merely a method of assisting in the domestic criminal processes of the requesting State against the laws of which the fugitive has offended, then it appears odd that the domestic criminal law of the requested State should matter. In the Canadian case of Rajovic (No. 2),254 Graburn J held that he could see no reason for foreign law needing to be proved, but assumed on the basis of precedent that it ought to be. Within the twenty-ﬁve member States of the European Union, subject to implementation, the double criminality requirement has no part to play in relation to 32 crimes with respect to a request based on the European Arrest Warrant.255 Those crimes include terrorism, computer-related crime, racism and xenophobia, and sabotage, all of which lack precision, yet under Article 2.2 of the EAW, if the deﬁned offence carries a penalty of three years detention in the requesting State, there is no need for the facts to make out a crime in the requested State. On one interpretation, the only justiﬁcation for the requirement would be where the fugitive was not a resident of the requesting State and did not know of the particular law – yet this would offer protection on the basis of ignorance of the law, which is not usually a defence. Surely, the political offence exemption and the speciality rule would prove effective to defend the fugitive.256 However, while this view has many appealing features and while the criminal laws of States are becoming much more closely aligned, double criminality should not be rejected. As stated previously, there are still substantial differences in criminological policy even among nations in Europe. Given that Bassiouni’s subjective approach, below, is adopted, then double criminality ought not to prove a problem to requesting States whilst defending fugitives from requests for acts that are either not criminalised, no longer a crime or bearing a non-custodial sentence in the requested State.257 As to whether the double criminality requirement has been satisﬁed, Bassiouni provides the following theoretical analysis.258 There are two methods of interpreting this requirement of double criminality, namely: in concreto (objective) and in abstracto (subjective). The ﬁrst approach relies on the label of the offence and a strict interpretation of its legal elements. The second approach relies on the criminality of the activity regardless of its speciﬁc label and full concordance of its elements in the respective laws of the two States. 254

255

256 257

258

Re Socialist Federal Republic of Yugoslavia and Rajovic (No. 2), (1982), 62 C.C.C. (2nd) 538. See also LA FOREST, EXTRADITION TO AND FROM CANADA, at p. 108 (2nd ed., 1977). OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). For the list of offences, see supra n99. See BASSIOUNI, supra n97, at pp. 323 et seq. BASSIOUNI, supra n97, at pp. 318–9. This passage seems to refute some of his views expressed at pp. 323–4. See also Riley, supra n251, at 17. See p. 322 of INTERNATIONAL EXTRADITION AND WORLD PUBLIC ORDER, supra n97.

104

Chapter 3

As will be seen, there is an increasing trend to adopt the in abstracto, subjective, interpretation. In practice, three tests for correspondence between the requesting and requested States could be applied: correspondence of names, correspondence of the elements of the offence and, less strictly, a corresponding criminalisation of the fugitive’s acts or omissions. No State requires that the names of the offence in both States be identical. The traditional test, as shown by the following cases, is whether the elements of the offence charged on the warrant correspond to an offence contrary to the criminal laws of the requested State, although the test may be applied with differing degrees of strictness. In the British case of In re Arton (No. 2),259 the court looked at French law to decide whether the crime was contrary to English law and French law and whether it was included in the extradition treaty. The Divisional Court held that the facts amounted to a crime in both versions of the treaty, English and French, and that this was sufﬁcient even though they fell under different heads in the two lists of extradition crimes. The court found as a fact, as proved by an expert on French law, that the crime as comprised in English law under the Larceny Act 1861 had an equivalent in Article 147 of the French Penal Code. Lord Russell of Killowen CJ was correct in his approach when he used the facts of Arton’s offence to see if these amounted to a crime under English law, rather than merely use the name of the offence under French law: English law has never required that extradition should only take place if the offence as alleged by the requesting State has a direct, identical equivalent in name and content in English law. The English and French texts of the treaty are not translations of one another. They are different versions, but versions which, on the whole, are in substantial agreement. We are here dealing with a crime alleged to have been committed against the law of France; and if we ﬁnd, as I hold that we do, that such a crime is against the law of both countries and is, in substance, to be found in each version of the treaty, although under different heads, we are bound to give effect to the claim for extradition.

After that judgment, British courts, when hearing requests had required the applicant government to prove, as a fact, the existence of a crime under its own law substantially similar to an offence under English law which is made out by the conduct of the fugitive criminal in the requesting State. The position was neatly summarised in the decision of Ex parte Budlong.260 Having reviewed the pertinent English case law,261 the court concluded that the offences did not have to be identical in each State, only that they are of the same nature, have common elements

259 260 261

Supra n83, at 517. R v Governor of Pentonville Prison, ex p.Budlong, [1980] 1 WLR 1110, esp. 1118–23. I.e. In re Windsor, (1865), 6 B&S 522; In re Bellencontre, [1891] 2 QB 122; In re Arton (No. 2), supra n83; R v Dix, (1902), 18 TLR 231; R v Governor of Pentonville Prison, ex p.Ecke, [1974] CRIM.L REV.102.

Effecting the Response through International Criminal Procedures

105

or correspond in substance. The court even held that U.S. jurisprudence on this matter was the same:262 Absolute identity is not required. The essential character of the transaction is the same and made criminal by both statutes.263

The court in Budlong concluded that double criminality would be satisﬁed where, (1) . . . the crime for which extradition is demanded would be recognised as substantially similar in both countries; (and) (2) . . . there is a prima facie case that the conduct of the accused amounted to the commission of the crime according to English law.264

In the instant case, while burglary under §1801(b) of Title 22 of the District of Columbia Code did not require ‘entry as a trespasser’, unlike s9 Theft Act, 1968, the facts did make out a s9 offence and the two crimes were “substantially similar in concept” in both countries. Therefore, the fugitives were extradited. It seems that United Kingdom practice with respect to foreign States after Arton had been a mixture of the in abstracto and in concreto interpretations of the double criminality rule. Objectively, the elements of the offence must be substantially similar, but the accused’s conduct was also relevant. Some United States cases have also adopted this Budlong-esque approach. In Caplan v Vokes,265 the Court of Appeals remanded an extradition request to the District Court because of an inadequate record of the extradition hearing. In part, it did not reveal whether the dual criminality requirement had been met. In reviewing the extradition charges in light of the dual criminality requirement, the district judge or magistrate should look to proscription by similar provisions of federal law. . . .266

Further, in In the Matter of the Extradition of Prushinowski 267 the District Court compared English law with provisions of the North Carolina General Statute S14–100, to see if the different offences were ‘substantially analogous’: The court is required to determine whether the acts upon which the English charges are premised are prescribed by N.C. Gen-Stat S14–100. The offences of the two

262 263 264 265 266

267

Supra n260, at 1121. Wright v Henkel, 190 US 40 at 58 (1902). Cf. BASSIOUNI, supra n97, at pp. 329 et seq. Supra n260, at 1122–23. 649 F.2d 1336 (1981). Supra n265, at 1344 n.16, citing Cucuzzella v Keliikoa, 638 F.2d 105 at 107 (1981). See also, Oen Yin Choy v Robinson 858 F.2d 1400 (1988) and Peters v Egnor 888 F.2d 713 at 719 (1989). 574 F.Supp 1439 at 1446 and 1447 (1983).

106

Chapter 3 countries must be substantially analogous, but they need not to be identical. Branch v Raiche, 618 F.2d at 851; Cucuzzella v Keliikoa, 638 F.2d at 108; In re Sindona, 450 F.Supp 672 (S.D.N.Y, 1978). The scope of the liability need not be coextensive and the elements of the crime do not have to perfectly match. Freedman v United States, 437 F.Supp 1252 at 1261 (1967).

However, in other circumstances a stricter test has been used to see if the elements of the offence corresponded with an offence contrary to the criminal law of the requested State. The Irish case of The State (Furlong) v Kelly268 provides a clear explanation of this stricter test. [The] position may be illustrated algebraically as follows. If the [requesting State’s] offence consists of, say, four essential elements a+b+c+d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof.269 If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be deﬁned as a+b+c+d+e), then there is no corresponding Irish offence to satisfy the [double criminality] requirements . . . for the simple reason that, ex hypothesi, conduct a+b+c+d falls short of being an offence under Irish law or, in plainer words, is not an offence.

With regard to requests from Commonwealth States, English courts have applied the same principles as in Furlong. In Aronson,270 following earlier authority, such as R v Brixton Prison Governor, ex p.Gardner,271 the House of Lords held that the facts constituting the fugitive’s crimes were irrelevant under the Commonwealth legislation then in force. All that mattered was whether the ingredients of the Canadian offences disclosed in the Canadian warrant sent with the request for extradition disclosed offences under English law; on that basis, the House of Lords quashed the surrender order for 69 out of 77 offences, because the Canadian deﬁnitions thereof lacked ingredients that were essential to English law.272 While the ‘correspondence of elements of the offence’ test has been applied more or less strictly in different jurisdictions and cases, the pure in abstracto, ‘correspondence of criminalised conduct’ test has been applied as well, and is increasingly the accepted method of giving effect to the double criminality requirement. In M v Federal Department of Justice and Police,273 the Swiss Federal Tribunal held

268

269 270

271 272

273

Supra n250, at 141. Cf. A Dutch court was too speciﬁc when dealing with a case of smuggling Ecstasy, requiring a precise chemical description of the drug so as to ensure that that particular chemical was criminalised in The Netherlands – The Guardian p. 6, 24 MAY 2000. Cf. Budlong, supra n260, where the U.S. offence had fewer elements than its English equivalent. Government of Canada v Aronson, [1990] AC 579. For the Nigerian understanding, see KassimMomodu, Extradition of Fugitives by Nigeria, 35 INT’L & COMP. LQ 512 at p. 516 (1986). [1968] 2 QB 399. Supra n270, at 589–90. The 2002 version of the Commonwealth Scheme uses the ‘correspondence of criminalised conduct’ test, supra n13. Supra n249.

Effecting the Response through International Criminal Procedures

107

that the concern of the double criminality requirement was that the act or omission in question was punishable in both States. British law adopted the European standard as set out in Article 2 of the European Extradition Convention274 in section 2 of the 1989 Extradition Act. This statutory provision adopts the reasoning of the House of Lords under the previous Extradition Act 1870 in In re Nielsen.275 [The] magistrate must then hear such evidence . . . as may be produced on behalf of the requisitioning foreign government, and by the accused if he wishes to do so; and at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign State in which the conduct was in fact committed.

United State’s law, subject to Caplan v Vokes and Prushinowski 276 above, also applies the correspondence of criminalised conduct test. In Wright v Henkel 277 the U.S. Supreme Court held as follows: The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by both parties.

And later. It is enough if the particular variety was criminal in both jurisdictions.

There are also phrases in the leading decision of Collins v Loisel278 that indicate an analogous approach. It is true that an offence is extraditable if the acts charged are criminal by the laws of both countries.

274 275

276 277 278

Supra n13. See now, ss64, 65 and 137 of the 2003 Act. [1984] 2 WLR 737 at 748–49. See also Government of the U.S.A. v McCaffery, [1984] 1 WLR 867. The Bahamas adopted this approach in Rey v Switzerland, [1999] AC 54. Supra nn265 and 267. 190 US 40 at 58 and 60–61 (1902). Emphasis added. 259 US 309 at 311 (1922). Emphasis added. Cf. Factor v Laubenheimer, 290 US 276 (1933), which, however, is ﬁnally irrelevant since U.S. courts ignore its peculiarities for the most part. See BASSIOUNI, supra n97, at pp. 329 et seq.

108

Chapter 3

For the most part, the United States approach is an in abstracto (subjective) one where the conduct of the fugitive is the paramount consideration. All that is required is that the conduct of the accused is criminal in both jurisdictions, although this does lead the courts into inquiring, on occasion, whether the acts charged satisfy the essential elements of the offence as charged in the requesting State.279 The logic of having regard to whether the accused’s acts or omissions are criminalised in the requested State, rather than seeing whether the offence with which he is charged under the criminal law of the requesting State has an equivalent in the requested State’s law, is that the latter approach tends to become very technical and obstructive to the efﬁcient practice of extradition. The decision in Riley280 deals with this matter in some detail. The utility of the principle of double criminality is, however, likely to be outweighed by the impediment which it represents to the advancement of criminal justice if its content is deﬁned in over-technical terms which would preclude extradition by reason of technical differences between legal systems, notwithstanding that the acts alleged against the accused involve serious criminality under the law of both the requesting and requested States. One can ﬁnd, in the writings of some publicists and in some judgments of international and domestic courts, support for the view that the principle of double criminality requires correspondence or substantial correspondence between an entire offence under the law of the requesting State, being an alleged offence for which extradition is sought, and an entire offence under the law of the requested State. This approach is likely to result in primary emphasis being placed upon labels and correspondence of legal elements. If unqualiﬁed, it would signiﬁcantly and arbitrarily frustrate the effectiveness of extradition arrangements between States with dissimilar systems of criminal law. The preferable view – and that which commands general acceptance – rejects the need for precise correspondence between labels or between constituent elements of identiﬁed legal offences under the criminal law of the requesting and requested States and deﬁnes the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisﬁed if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements.

Double criminality is a widely accepted standard of extradition and, properly used, it is a valuable protection for a fugitive. It means that a State cannot obtain his surrender for conduct not recognised as criminal in the requested State. However, the emphasis must be on the fugitive’s acts or omissions, not on the precise requirements of the criminal laws of each State in some search for equivalence.

279

280

BASSIOUNI, supra n97, at pp. 329–43 esp. p. 338, citing Gallina v Fraser, 177 F.Supp 856 (1959), aff’d 278 F.2d 77 (1959), cert. den. 364 US 851 (1960). Supra n251, at 17, per Deane J. See also, Hagerman v United States (1991) 50 BCLR (2d) 169 (Canada).

Effecting the Response through International Criminal Procedures

109

That leaves only the question of whether the act must have been criminal at the time it was committed under the law of the requested State, or whether it is enough that it would be criminal at the time of the request. According to the House of Lords in the third Pinochet case,281 it must have been criminal under the law of the requested State at the time it was committed, but the Extradition Act 2003 provides an exception in s196(3) for genocide, crimes against humanity and war crimes.

6.4 Double Criminality and Jurisdiction The requirement of double criminality, if applied on the basis of a correspondence of criminalised conduct in the requesting and requested States, stipulates that if the case were to be presented before the courts of the requested State, mutatis mutandis, it could be prosecuted on the same facts. Offences where either the elements, in whole or in part, of the offence, its results or both occur beyond the territory of the requesting State can create difﬁculties. Such problems do not arise so much for civil law States which operate wide extraterritorial jurisdiction, nor, for that matter, for the U.S.A. now that it has adopted several of those principles, too, but rather for other common law States with merely territorial jurisdiction. For these States, for example the United Kingdom, extradition cases might fail over disputes about the scope of extraterritorial jurisdictional competence in criminal matters. A request from France for the return of a French national from the United Kingdom to face theft charges arising out of an offence committed in Italy would fail to meet the double criminality requirement but for statutory intervention speciﬁc to the extraterritorial jurisdiction exercised by most civil law States – the extraterritorial element is ignored when considering the conduct under English law;282 if any other head of extraterritorial jurisdiction is being asserted by the requesting State, then a successful extradition request would depend on the United Kingdom having Joycean283 protective principle jurisdiction or qualiﬁed territorial jurisdiction in similar circumstances. Yet, it might be wondered why it should matter to the requested State that the accused is being sought to face prosecution in the requesting State on the basis of extraterritorial jurisdiction. The question for the requested State should turn only on whether the facts alleged would be an extradition crime if committed in the requested State; the principle of jurisdiction asserted need not be an element of double criminality. In Schoenmakers v DPP,284 the fugitive had supplied drugs from The Netherlands to persons in the United States. When Australia received a request

281 282

283 284

Supra n231, at 107. For Category 1 States, it is dealt with in s64(5) Extradition Act 2003, unless, of course, the theft constituted fraud or swindling or one of the other crimes listed in the EAW, thus not requiring double criminality (s64(1)). For Category 2 States, see s137(4). Supra n166. 101 INT’L L REP.174 at 179–80 (S.Ct, W.Australia).

110

Chapter 3

for his extradition, while the judge was prepared to hold that a conspiracy abroad to import drugs into Australia would be a prosecutable offence, for the purposes of double criminality, the only question for the magistrate is whether the conduct would have been criminal if committed in Australia. Rather than substituting the requested State for the requesting State under this test, one simply moves all the criminal acts to the requested State,285 even if one is dealing with extraterritorial conduct aimed ultimately at the requesting State. Nevertheless, courts do ordinarily look at the extraterritorial jurisdictional issues in assessing double criminality and, where the requested State operates only the territoriality principle, it may prevent extradition. For instance, in Romania v Cheng,286 the judge wrongly held double criminality would only ever be satisﬁed if the acts occurred in the territorial jurisdiction of the requesting State, but was correct to refuse extradition since Romania’s only claim to jurisdictional competence was on the basis of the passive personality principle, generally rejected by States as a valid ground on which to justify criminal competence to prosecute.287 English law, a good example of a system with limited extraterritorial competence, permits courts to assume jurisdiction in cases of simple territoriality and in cases of qualiﬁed territoriality where either the conduct constituting the crime or the result of the crime occur within Britain, depending on the nature of the offence.288 The case of Reyat289 concerned a Canadian request for an alleged bomber; the fugitive was alleged to have planted a bomb in a suitcase on board an aircraft bound for Japan, which suitcase exploded killing two Japanese baggage handlers in Tokyo. The charges alleged manslaughter as well as explosives offences. The Divisional Court had to decide whether, if the bomb had been made and put on board the aircraft in Britain killing two people in Japan, British courts would have had jurisdiction. The case turned on a speciﬁc provision giving wider powers of prosecution in homicide cases,290 but the court was prepared to hold that manslaughter was a conduct crime291 on the basis of R v Berry,292 a case concerning the making of bombs not manslaughter, and that the making and planting of the bomb in England would have given English courts qualiﬁed territorial jurisdiction. 285

286 287 288 289 290

291 292

In Melia, supra n118, at 303, the United States court held that whether the courts in the requesting State would have jurisdiction was not a matter for the extradition court. Supra n81. See the Lotus case, supra n121. Hirst, Cross-Frontier Offences, supra n105. Supra n246. Section 9, Offences Against the Person Act 1861. Of course, the United Kingdom has extraterritorial jurisdiction over all the offences established by the multilateral, anti-terrorist conventions, so it would have no problem if the facts made out such an offence; for instance, if Reyat had been charged with endangering the safety of aircraft contrary to the principles established in the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal, 23 September 1971, 10 INT.LEG.MAT.1151. Murder is a result crime; see Secretary of State for Trade v Markus, supra n133. Not cited in Reyat. [1985] AC 246.

Effecting the Response through International Criminal Procedures

111

That a fugitive on such a serious charge should be prosecuted is without question, but the reasoning in the judgment leaves much to be desired. The Privy Council in Somchai,293 dealt with whether extraterritorial inchoate offences, deemed in jurisdictions following the English model to be conduct crimes,294 could be prosecuted before an English court if the intended result of the crime was to occur in England. It appeared to extend the British understanding of the territorial principle of jurisdiction by holding that when considering inchoate offences where all the preparatory steps take place abroad, the courts might assume the right to prosecute if the result was to occur in England. There is now the ridiculous situation, however, that if the inchoate elements occur outside the requesting State, but the intention was that the full offence would have effect in the requesting State, then English courts will ﬁnd that the double criminality requirement is met, even though inchoate offences are conduct crimes and, as such, are usually only open to prosecution if some conduct would have occurred in the State asserting jurisdiction. Nevertheless, the reasoning in Somchai makes sense. If evidence was obtained that a terrorist cell operating abroad was planning a bombing campaign in London, what sense could there be in the authorities not acting until the cell came to England to plant the bombs, with the risk the terrorists might slip through the net.295

Fortunately, this set of affairs is limited to those countries which have adopted the English understanding of classifying crimes into two groups, conduct and result, where inchoate offences are strictly conduct crimes. It was held in Melia,296 for example, that Canadian courts would even have jurisdiction to prosecute a person for conspiracy where the ultimate crime would be committed abroad and where the fugitive’s only nexus with Canada was through phone calls made to other conspirators in Canada whilst he was in the United States. Yet, the best approach for all States might be to ignore principles of jurisdiction when deciding whether double criminality is satisﬁed.297 A more sensible way of including jurisdictional matters would be for the requested State to permit extradition if it recognised as accepted under international law the principle asserted by the requesting State, even if it did not apply the particular principle in its own criminal proceedings. To that end, the changes seen in the Extradition Act 2003 mean that even English courts will not be constrained by English rules on quasi-territorial jurisdiction in extradition cases.298

293 294 295 296 297 298

Supra n135. Hirst, both supra n105, at p. 87. See also Gilbert at the same reference. Supra n135, at 877–78. Supra n118, at 303. Supra n284 and Melia, supra n118, at 303. See ss64 and 137:

112

Chapter 3

7. Fiscal Offences Traditionally, ﬁscal offences are excluded from those crimes which are extraditable either through an explicit provision299 or by omission from the then list of extraditable offences.300 The Norwegian government reluctantly had to end an extradition request to the United Kingdom in 1983, because tax fraud was not a ground for extradition in the Anglo-Norwegian treaty.301 Fortunately, a later case involving Norway and the United Kingdom resulted in the fugitive being returned for tax evasion because his acts amounted to the extradition crimes of theft and deception, even if the revenue authorities were the victims.302 This change reﬂects a general policy of extraditing ﬁscal offenders. According to one noted civil law commentator,303 Most of the older conventions excluded ﬁscal offences but this attitude is changing and there is now a very strong and unambiguous tendency among European States to allow extradition for ﬁscal offences.304

299 300

301 302

303

304

64(5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisﬁed – (a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law). 137(4) The conduct also constitutes an extradition offence in relation to the category 2 territory if these conditions are satisﬁed – (a) the conduct occurs outside the category 2 territory and no part of it occurs in the United Kingdom; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law). See Article 5 of the 1957 European Extradition Convention, supra n13. Although the general trend to employing an eliminative test for extradition crimes will in time remove this particular obstacle. See The Guardian p. 4, 6 JAN 1983. R v Chief Metropolitan Stipendiary Magistrate, ex p.Secretary of State for the Home Department, [1989] 1 All ER 151. The U.S. authorities are also willing to extradite ﬁscal offenders; see Prushinowski v Samples, 734 F.2d 1016 (1984). Stein in THE 1982 COMMONWEALTH REVIEW OF EXTRADITION ARRANGEMENTS, at p. 31, available from the Commonwealth Secretariat. See the Irish case of Byrne v Conroy, unreported, High Court, 1995 No. 351Sp., where the abuse of the EC Common Agricultural Policy by farmers in Northern Ireland who then received unwarranted Monetary Compensation Amounts was held not to be a revenue offence. The judgment consists principally of a deﬁnition of ‘revenue offence’ under Irish and EC law.

Effecting the Response through International Criminal Procedures

113

Dr Stein pointed out that the Second Additional Protocol to the European Convention on Extradition,305 many national extradition statutes,306 the Inter-American Convention307 and the 1996 Convention relating to the Extradition between the Member States of the European Union308 all make provision for the extradition of ﬁscal offenders. The revised 2002 Commonwealth Scheme also allows for the extradition of ﬁscal offenders. Extradition Offences and the Dual Criminality Rule 2(4) An offence described in paragraph (2) is an extradition offence notwithstanding that the offence: (a) is of a purely ﬁscal character; or (b) was committed outside the territory of the requesting country where extradition for such offences is permitted under the law of the requested country.

The problem is still raised, though, in relation to speciﬁcally ﬁscal cases that are not also violations of the general criminal law. In such cases, the double criminality rule would render detailed national offences, without an equivalent provision in the requested State’s law, non-extraditable. Since ﬁscal laws are generally very particular, the double criminality rule will limit extradition to ﬁscal offences that amount to the normal ﬁnancial crimes. The conduct of the accused must fulﬁl the requirements of an offence contrary to the law of the requested State, and the likelihood of this will decrease the more speciﬁc the offence is to the ﬁscal laws of the requesting State. Nevertheless, with respect to Category 1 States, the United Kingdom has removed this limitation in its Extradition Act 2003: 64(8) For the purposes of subsections (3)(b), (4)(c) and (5)(b) – (a) if the conduct relates to a tax or duty, it is immaterial that the law of the relevant part of the United Kingdom does not impose the same kind of tax or duty or does not contain rules of the same kind as those of the law of the category 1 territory; (b) if the conduct relates to customs or exchange, it is immaterial that the law of the relevant part of the United Kingdom does not contain rules of the same kind as those of the law of the category 1 territory.

305 306

307 308

ETS 98, 1978. Article 3.3, Swiss Federal Act on International Mutual Assistance in Criminal Matters, 20 MAR 1981, 20 INT.LEG.MAT.1339 (1981), as amended 4 OCT 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern); see also the Decree on International Mutual Assistance in Criminal Matters, 24 FEB 1982 as amended 9 DEC 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern). The United Kingdom Extradition Act 2003, s64(8), See SHEARER, supra n40, at pp. 61–63. Supra n253, Article 6; and see the Explanatory Report, pp. 19–20.

114

Chapter 3

Therefore, while the current increasing willingness to extradite even when the revenue authorities are involved ought to continue, unless States relax the double criminality rule in line with United Kingdom’s 2003 Act, complete extraditability of tax offenders will not be possible, except with States which have particularly close economic links. Yet for many developing States, fugitives who have broken ﬁscal laws may well have substantially damaged the national economy. In Ghana’s economic situation, in common with that of some others, it was imperative that the country be able to extradite those who had offended in such a serious area of activity.309

Fiscal offences that on their facts could be common crimes ought always to be extraditable; in other cases, there ought to be a generous interpretation of the double criminality rule.

8. The Requirement of a Prima Facie Case Possibly the most contentious area of United Kingdom extradition law used to be the requirement that the requesting State prove a prima facie case against the accused. It seems to be a problem peculiar to British extradition law, for while the rest of the common law countries practice the same requirement in one form or another, the United Kingdom’s proximity to the civil law jurisdictions of continental Europe meant that in the past many more requests were received from those jurisdictions where the implications and demands of this requirement were not understood. The Continental position is well explained by Stein.310 The prima facie case is unknown in Europe. It is on occasions a source of mystery as to precisely how much evidence is required. Because European countries are compelled by law to work to a strict timetable and only have twelve days in which to get the necessary documents to the country requested, there is a special difﬁculty in cases involving complex economic fraud. These are cases which could take some time to document adequately. One result of prima facie could be that extradition is unobtainable in certain cases. Europe enjoys a state of mutual conﬁdence in the administration of justice in other European countries and can therefore reduce the documentation involved. However, where the good faith of the country is suspect, Europe can go well beyond the requirements of prima facie. . . . Each European country has the right to further information when it feels it needs it.

309

310

COMMONWEALTH REVIEW, supra n303, per The Hon. GEK Aikins at p. 29. Supported by several other states, such as the Seychelles and Lesotho. See also, NS Pholo, at p. 31. The Meeting should take account of the considerable damage which these types of crime could inﬂict on developing countries with shaky economies. COMMONWEALTH REVIEW, supra n303, at pp. 57–58.

Effecting the Response through International Criminal Procedures

115

Indeed, European States found the requirement in English law burdensome and a criticism of their criminal processes. The Anglo-Spanish treaty311 lapsed because the Spanish government had not been able to secure the extradition of its fugitives from the United Kingdom, mainly due to the prima facie case requirement.312 New talks concluded a fresh treaty and it provided for a less stringent evidentiary test.313 Even the Home Ofﬁce recognised that the rule does limit extraditions. Something like a third of applications made to the United Kingdom under our extradition treaties fail, and the most common cause of failure is undoubtedly the requesting State’s inability to satisfy the prima facie case requirement.314

Statistics bore this out. In the ﬁve years prior to the then Extradition Act 1989 which removed the requirement for European extraditions, 1985 to 1989 inclusive, United Kingdom courts extradited under the 1870 Extradition Act an average of ﬁfteen persons to its European Community partners, excluding the special case of the Republic of Ireland.315 By way of contrast, France extradited about 150 persons each year in that same period.316 To remedy this apparent failure, the United Kingdom adopted measures to selectively exclude the requirement in relation to certain States. Subsections (4) and (8) of section 9 of the Extradition Act 1989 combined to permit surrender without the need to prove a prima facie case.317 With the coming into force of the 1989 Act, the United Kingdom thereupon ratiﬁed the European

311

312

313 314 315

316

317

69 B.F.S.P.6, C.2182. Treaty terminated 13 OCT 1978: Spain (Extradition) (Revocation) Order, 1978, S.I.1978, No.1523. See The Guardian p. 1, 9 NOV 1984. NB. The Argentine government failed in its request for a former Iranian diplomat for terrorist crimes because of insufﬁcient evidence – The Guardian p. 12, 14 NOV 2003. Cmnd 9615. 1982 REVIEW, supra n102, at para. 4.6. See HCP-II, supra n2, at p. 15. That average is in fact boosted by the surrender in 1987 of a block of 25 persons in connection with the Heysel Stadium riot: see Postlethwaite, supra n61. See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW, at p. 109 (6th ed. 1987). See generally, MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW, at p. 117 (7th ed. 1997). Common law states have been removing the need to prove a prima facie case in another, less controversial, area, as well. Sometimes a fugitive may not wish to be delayed in his return to the requesting state to face trial; he would prefer to be prosecuted while the evidence is still fresh. In such cases he may opt for a simpliﬁed form of surrender. There are two types of simpliﬁed procedure and a very lucid analysis of these two levels waiver of the full rules was given by MJI Hill at the 1982 Marlborough House Meeting. COMMONWEALTH REVIEW, supra n303, at p. 49. [Mr Hill] suggested there were two categories of voluntary return. The ﬁrst when a fugitive was arrested and taken before a magistrate on a provisional warrant and consented to being returned. The second when a fugitive waited until the formal request had been received, but on seeing the papers, recognised the futility of contesting extradition proceedings. Those in the ﬁrst category were in effect waiving the entire extradition proceedings and protections afforded by the Scheme. Those in the second were waiving only the prima facie requirement and the opportunities for appeal and could arguably expect to receive full protection including that afforded by the specialty rule.

116

Chapter 3

Extradition Convention318 and extradition relations with the other high contracting parties are now conducted on the basis of the measures in Article 12 – under the Extradition Act 2003, Category 1 States do not need to prove a prima facie case according to s2(4), while Category 2 States still retain that obligation according to s71(2) and (3), unless designated by the Secretary of State under s71(4) as only required to supply information.319 Article 12 of the European Extradition Convention requires only that the request is accompanied by a certiﬁcate of conviction or the warrant for arrest, a statement of the offence and a copy of the necessary laws.320 It was a major change of policy for the United Kingdom and has guaranteed a freer ﬂow of fugitives because of the simpler requirements.321 It must also be remembered that the extradition procedures to which this appeal relates ﬂow from the European Convention on Extradition and are designed to facilitate the return of accused or convicted persons from one contracting State to another. The removal of the requirement that the requesting State should provide prima facie evidence of the alleged crime demonstrates that extradition proceedings between contracting States were intended to be simple and speedy, each State accepting that it could rely upon the genuineness and bona ﬁdes of a request made by another one.322

Furthermore, there was increasing readiness in the Commonwealth to do away with the requirement. While this was not accommodated in the Extradition Act 1989, it

318 319

320

321

322

Supra n13. See also, ss73(5), 84(7) and 86(7). The following States are so designated under SI 2003 No. 3334 (as at 20 July 2005): Albania, Andorra, Armenia, Australia, Azerbaijan, Bulgaria, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Iceland, Israel, Italy, Liechtenstein, Macedonia, FYR, Moldova, New Zealand, Norway, Romania, Russian Federation, Serbia and Montenegro, Slovakia, South Africa, Switzerland, Turkey, Ukraine, The United States of America. STEIN, the COMMONWEALTH REVIEW, supra n303, at pp. 100–101. See also Art. 12, European Extradition Convention, supra n13. While most signatories require no more than Art. 12 sets out, Ireland makes more detailed demands than the basic minimum set out therein (see the German spokesman in The Irish Times p. 2, 22 JUN 1990); Israel does demand a prima facie case to be proven, and Germany (Art. 10(2) Extradition Law 23 DEC 1982, 24 INT.LEG.MAT.94 (1985)) and the Scandinavian countries reserve the right to require such proof in any particular case – 1982 REVIEW, supra n102, at para. 4.2. A Russian request under the European Extradition Convention 1957 for Akhmed Zakaev, an alleged Chechen rebel leader, was rejected by the Danish Ministry of Justice for lack of evidence – Press Release 3 December 2002; The Guardian p. 22, 7 DEC 2002; p. 2, 11 DEC 2002; p. 12, 12 DEC 2002. See also SHEARER, supra n40, at pp. 157–8. The Australian Extradition Act 1988 adopts the same stance. Nevertheless, proper charges still need to be laid – The Guardian p. 15, 27 DEC 2000; p. 19, 6 JAN 2001. Schmidt, supra n84, at 76–77. Cf. A requesting State under the European Convention on Extradition, 1957, must specify the place where the offence is alleged to have occurred or the High Court will order the transnational fugitive offender’s release on application by way of habeas corpus. The court was not prepared to assume that if Portugal was the requesting State, then the crime had occurred there; such an approach smacks of an overly bureaucratic understanding of the role of the court under the European Convention on Extradition 1957 now that it cannot investigate the existence of a prima facie case – De Canha v. Portugal, unreported, QBD, CO/0769/97, 7 July 1997.

Effecting the Response through International Criminal Procedures

117

has been made possible in the 2003 Act. As such, requests from Australia, Canada, New Zealand and South Africa no longer require the requesting State to prove a prima facie case. However, it may well be the case that the “baby has been thrown out with the bath water”. The real problem is that the nature of the requirement and the reason it caused so much difﬁculty were never fully examined. Were the prima facie requirement only to be a minor quirk of English extradition law, it would not warrant further study, but one may compare the prima facie requirement with the civil law rule that a State’s own nationals should never be extradited.323 If the prima facie requirement prevents extradition from the United Kingdom, it only does so to protect the fugitive from being surrendered when there is, at that time, no case against him. The prima facie rule required the magistrate to see whether, “if the evidence adduced stood alone at the trial, a reasonable jury, properly directed, could accept it and ﬁnd a verdict of guilty”.324 It was quite a low standard, nowhere near proof of guilt. The Extradition Act 2003 substitutes a slightly different test under s84(1) for Category 2 States: make a case requiring an answer by the arrested person if the proceedings were the summary trial of an information against him.

That is, the claim of ‘no case to answer’ could not be successfully asserted. Under either deﬁnition, the requesting State merely has to produce sufﬁcient evidence satisfying English rules of evidence,325 that the accused has a case to answer.326 Other

323 324

325 326

See Chapter Four below. Schtraks v Government of Israel, [1964] AC 556 at 580. See also Stratford JA in R v Jacobson and Levy, [1931] App.D.466 at 478: In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus. This interpretation is followed in other common law jurisdictions – Chua Han Mow v Superintendent of Pudu Prison, 87 INT’L L REP.206 at 208–09, Malaysia, Federal Court. See generally, CROSS AND TAPPER ON EVIDENCE, pp. 156–58, (8th ed., 1995) and R v Galbraith, [1981] 2 All ER 1060. All the magistrate is looking for is a case to answer, not full proof of guilt. R v Governor of Pentonville Prison, ex p.Kirby [1979] 1 WLR 541. Another reason that requesting States failed to meet the prima facie requirement was that the lawyers representing them in the United Kingdom were no longer familiar with the concept. British extradition procedures used to be designed to reﬂect, so far as is possible, the procedure in normal committal hearings. The traditional procedure, known as a long form committal, had been for an accused only to be sent for trial on indictment before a jury in a domestic prosecution after a prima facie case had been proven against him. However, it was statutorily provided by s6(2) Magistrates Court Act 1980 that the accused could waive the long form of committal in most cases. Research in 1984 showed that the long form committal was only used for eight per cent of committals in inner London and for less than ﬁve per cent in the provinces (see Lidstone’s report in the Home Ofﬁce Research Bulletin, published on 3 December 1984). The Royal Commission on Criminal Justice, 1993 (Cm.2263), found it was only used in seven per cent of cases and recommended its abolition – long form committals were abolished altogether in ss44 and 47 Criminal

118

Chapter 3

common law States apply a similar test. The previous Australian requirement of “sufﬁcient evidence to justify trial” was explained in Prevato327 in the much same language. The U.S. test of “probable cause” was held to require that an extradition request would not be granted “upon demand or surmise, but only upon such reasonable grounds to suppose him guilty as to make it proper he should be tried”.328 As such correspondence of terminology presupposes, the prima facie requirement is no problem at all for other common law States. It is well understood in those States. Moreover, that it is required of Commonwealth States refutes the continental European States’ contention that it is applied because of a distrust of the civil law system.329 Moreover, in the Anglo-U.S. Extradition Treaty of 2003, the United Kingdom no longer requires of the United States that it produces a prima facie case, although the United Kingdom still has to show probable cause when it makes a request to Washington DC.330 The claim that it showed distrust of civil law systems cannot be upheld.

327 328

329

330

Procedure and Investigations Act 1996. Therefore, lawyers had little recent experience of proving a prima facie case in a domestic hearing. Thus, the 2003 Act refers in ss9 and 77 to the judge in the extradition hearing having “the same powers (as nearly as may be) as a magistrates’ court would have if the proceedings were the summary trial of an information against the person”, a much better understood procedure (1986), 64 ALR 37. Holmes CJ in Glucksman v Henkel, 221 US 508 at 512 (1922), cited in Artukovic v INS, 628 F.Supp 1370 at 1378 (1980); see Lui, supra n69, and Quinn v Robinson 783 F.2d 776 at 783 (1986). See also BASSIOUNI, supra n97, at pp. 518–24, and Sindona v Grant, 619 F.2d 167 (1980). For instance, the request by the United States for the surrender of Al Siri was rejected because Home Secretary held there was no case to answer – The Guardian p. 7, 30 JUL 2002. Done at Washington, 31 March 2003, Cm5821: Article 8 Extradition Procedures and Required Documents 1. All requests for extradition shall be submitted through the diplomatic channel. 2. All requests for extradition shall be supported by: (a) as accurate a description as possible of the person sought, together with any other information that would help to establish identity and probable location; (b) a statement of the facts of the offense(s); (c) the relevant text of the law(s) describing the essential elements of the offense for which extradition is requested; (d) the relevant text of the law(s) prescribing punishment for the offense for which extradition is requested; and (e) documents, statements, or other types of information speciﬁed in paragraphs 3 or 4 of this Article, as applicable. 3. In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.” (Emphasis added) For a critical review of the treaty, see Hayes, The new UK-US Extradition Treaty, Statewatch analysis no. 17, http://www.statewatch.org/news/. The danger of the new procedure is high-

Effecting the Response through International Criminal Procedures

119

Given that the above reveals the true nature and extent of prima facie proof, the real reason for it causing so many difﬁculties may not be its supposed excessive demands, but rather some other factor. There have been several explanations as to why the requirement is so restrictive. One possible reason is that the prima facie test has become stricter during the past century. This suggestion may be borne out in part by empirical research of extradition data, although a full study of the test would have to have regard to all committal hearings. Before World War I, the number of extraditions was very high:

Extraditions

Refusals

30 53 56 46

4 8 4 1

1894 1898 1903 1913

During World War I there were no extraditions. In 1925, eleven people were extradited and three were not surrendered: this was the highest number of surrenders in any one year between the wars. Immediately after the Second World War the number of extraditions was minimal, but the Seventies saw a general increase, such that in 1980, seventeen people were extradited and there were seven refusals. The trend is continuing.

1997 1998 1999 2000

Requests made to the UK

Surrenders by the UK

107 111 101 78

43 45 38 47

lighted by the Lofti Raissi case where the accused was eventually released for lack of evidence having been alleged to have trained those who carried out the attacks on 11 September 2001; given the inﬂammatory nature of such charges in the United States, that he might have been returned on mere information, as is now possible under the 2003 treaty, suggests an abdication of responsibility by the United Kingdom authorities – The Guardian pp. 1 and 4, 29 SEP 2001; p. 6, 28 NOV 2001; p. 7, 5 DEC 2001; p. 14, 31 JAN 2002; p. 4, 13 FEB 2002; p. 1, 15 FEB 2002; G2 pp. 2 and 3, 15 FEB 2002. See the Babar Ahmad case – BBC News website 4441448.stm, 2005/11/16 18:17:47; The Guardian p. 6, 17 NOV 2005.

120

Chapter 3

Yet, this is still only approaching the level at the turn of the century and, as a percentage of requests, it is still much lower. It has been suggested that these ﬁgures reveal how the prima facie test has become stricter as magistrates courts have become more professional, but there is nothing to prove this particular point. Many other reasons exist, including the increased complexity of the cases, which then fall foul of the double criminality rule. Furthermore, judicial understanding of the requirements of prima facie evidence has altered little over the years. Even so, some support for this view is found in the debates on the Fugitive Offenders Bill, later enacted in 1967. We have had occasion to go through the authorities on the reported cases on this matter and I am bound to say that in a number of cases – I am not saying today, but in the old days at least – the Bow Street Magistrate committed people to be sent abroad on very thin evidence.331

However, the comment supports the current test rather than any return to the alleged laxity at the turn of the century, so there seems little room for amendment and improvement in that direction. However, one of the main reasons for prima facie rules proving burdensome was that cases are often extremely complex, while at the same time governments are obliged by treaty to prepare their case within a very tight schedule.332 Given that European authorities are not used to having to prepare sufﬁcient evidence that swiftly, nor according to the British rules of evidence in order to make it admissible at the hearing, it is not surprising that this test is the cause of failure for so many requests. Yet those problems did not necessitate abolishing the prima facie requirement. They could have been met by extending the time limits available or by relaxing the rules governing the admissibility of evidence in extradition hearings. The prima facie requirement can be defended as a means of protecting the fugitive from unjustiﬁed removal from his domicile; only where the requesting State can show good cause for his surrender will he be extradited. The justiﬁcation for the requirement of a prima facie case today is that it operates as a protection for the individual. He will not be removed to another country which may be hundreds or thousands of miles away, with the inevitable disturbance to his life and employment, unless there are very good grounds justifying such removal. Above all, it prevents removal to another State of individuals who may merely be suspected of a criminal offence in such circumstances that the judicial authorities of the requesting State are under their own law justiﬁed in issuing a warrant of arrest, although

331

332

Lord Reid on the Bill’s Second Reading in the House of Lords. Cited in para. 9.11, 1982 REVIEW, supra n102. STEIN, supra n303, and accompanying text.

Effecting the Response through International Criminal Procedures

121

insufﬁcient evidence has been collected at the time of the issue of the warrant to justify a trial, which evidence may in fact never be collected.333

That it is partly a protection from arbitrary requests can be seen from experiences arising out of Anglo-Irish rendition. After Irish courts started to permit the extradition of members of the Northern Irish paramilitary organisations in 1982,334 there were repeated claims from members of the Dáil for the government to introduce a requirement of a prima facie case into the reciprocal legislation.335 Following Irish accession to the European Convention on the Suppression of Terrorism,336 concern that the fugitive might be lacking sufﬁcient protection prompted the passing of the Irish Extradition (Amendment) Act 1987. This Act did not impose a prima facie requirement, but it did allow the Irish Attorney-General to refuse to endorse a warrant if the United Kingdom authorities fail to supply sufﬁcient supporting evidence. As one form of protection was lost, another was created. The present position, however, is that Ireland and the United Kingdom conduct extradition under the European Arrest Warrant that does not require the prima facie case, has removed the role of the executive in extradition, and, for 32 crimes, including terrorism, does not even demand double criminality. However, regardless of the true extent of the prima facie case requirement’s demands, of the real reasons for it creating difﬁculties and of its purpose, it cannot be denied that it prevented the free ﬂow of extradition. The British government, therefore, adopted the civil law approach for its European neighbours in 1990 by ratifying the European Convention on Extradition337 and has extended it to some States outside Europe in the Extradition Act 2003. While it might be arguable that there is no reason to provide the protection of the requirement to a German national being requested by the Federal Republic of Germany since he would not have enjoyed it if he had been arrested before ﬂeeing, the British national requested by the Federal Republic is also denied its protection; reciprocity is also lacking because the Federal Republic will never extradite its own nationals.338 Furthermore, as will be considered below, the effective protection of the requirement could have been retained while relaxing the particular evidential requirements that create the difﬁculties for civil law States in trying to meet its limited conditions.

333 334 335

336 337 338

O’Higgins, The Irish Extradition Act 1965, 15 INT’L & COMP. LQ 369 (1966). See McGlinchey v Wren, [1982] IR 154. See The Guardian p. 28, 14 DEC 1985. See also the correspondence between David Moloney TD and the Minister of Justice, dated 6 JUN 1985. ETS 90. See the Extradition (ECST) Act 1987. SI 1990 No.1507. See Art. 16(II), Basic Law of the F.R.G., 1949; 159 B.F.S.P. 503. Under the EAW, all States ought to permit the extradition of nationals on the understanding any conviction will be served in their State of nationality, but see Chapter 4 below.

122

Chapter 3

9. Evidence and Extradition Hearings Again, this is a problem peculiar to the common law countries. It especially affects the United Kingdom because of the number of requests it receives from civil law States. Civil law States have never required the requesting State to prove a case against the fugitive, so there was never any issue of having to satisfy the requested State’s laws of evidence.339 The growth, though, of mutual assistance conventions,340 with their emphasis on easing the obtaining of evidence from abroad, may breed a greater sense of understanding and trust between common law and civil law systems, such that common law States will be more open to accepting evidence collected by civil law authorities attempting to satisfy any demand to prove a case against the fugitive.341 It seems to us that the peculiar nature of extradition proceedings of which an important part is the need to reconcile the different laws and judicial procedures of the requesting and requested States, should permit us at least to consider whether certain features of our rules governing the admission of evidence in domestic criminal proceedings might be adapted to accommodate more readily some foreign laws and practices.342

Within Europe, moreover, the adoption by nearly all States, including the United Kingdom and the Republic of Ireland, the two common law jurisdictions, of the procedures set out in the European Extradition Convention,343 of which Article 12(2)(b) only requires a statement of the facts, will also make evidential conﬂicts a thing of the past. Nevertheless, elsewhere problems concerning evidence will still arise where the offence may have occurred hundreds or thousands of miles away in a State with a different legal system. Moreover, it will be suggested that rather than repudiating the prima facie requirement in its relations with the rest of Europe, the United Kingdom ought, in fact, to have relaxed its rules on the admissibility of evidence. This section will show how such an amendment might have satisﬁed European States and retained the fugitive’s former protection. The issue of evidence in extradition hearings raises two questions. The ﬁrst concerns the form or presentation of that evidence, while the second concerns how far domestic rules on the admissibility of evidence should apply. Obviously, the two do overlap. 339

340 341

342 343

Cf. The Kadiyev case, where Bulgaria released an alleged member of the Russian maﬁa because the extradition documents received from the United States were not properly presented, TOL 10 OCT 2000. Supra n22 and accompanying text. See Gully-Hart, ‘How to Obtain Evidence in the Civil Law System (Continental Europe)’, in ATKINS, THE ALLEGED TRANSNATIONAL CRIMINAL, 1995, at pp. 277 et seq. 1982 REVIEW, supra n102, para. 5.6. Supra n13.

Effecting the Response through International Criminal Procedures

123

9.1 Form344 The witnesses of the offence will usually be in the requesting State which could be far away. Rather than incur the cost of bringing them to the requested State for the extradition hearing, common law States accept written evidence if it is supplied in prescribed form. For the United Kingdom that means the evidence is in an afﬁdavit, sworn by the percipient witness. It might be thought that such a relaxation of the general rules would be sufﬁcient for any requesting State to be able to muster sufﬁcient evidence to prove the fugitive has a case to answer, even within the strict time limits laid down in extradition treaties. All that is required is that evidence is given on oath or under afﬁrmation and the documents are then “duly authenticated”345 and, thus, admissible. However, these statutory and treaty provisions do not have regard to procedure in civil law countries. The inquisitorial system of criminal justice is not designed to receive evidence on oath or under afﬁrmation at this stage of the investigation. Often a police ofﬁcer will have acted as agent for the juge d’instruction and interviewed the witnesses, none of whom, nor even the police ofﬁcer, may have been required to take an oath or afﬁrm. In a case concerning a request by Switzerland to Canada, the proceedings were eventually dropped because of the evidential requirements. The fugitive had defrauded victims throughout Europe of $125,000,000, but the Swiss only had eighty days under the treaty to trace the witnesses and produce sworn afﬁdavits346 from all of them. In the event, the fugitive ﬂed from Canada to Brazil and the Swiss obtained his surrender from there on the basis of a mere summary of the case.347 A request from the United States, another common law State, to Australia failed to satisfy the prima facie case test when 175 witnesses produced over 8,000 exhibits to obtain the return of a fugitive charged with commercial fraud. The evidence was held to be too “disjointed and disconnected”.348 The obstructiveness of applying standard common law rules of evidence to extradition hearings was, however, openly displayed in Reyat.349 The case concerned a request from Canada to the United Kingdom; more similar extradition procedures between two States could not be imagined, so Canadian problems could not arise out of unfamiliarity with the requirements. The difﬁculty was that while Canada made the request, the result of the offence had occurred in Japan and the witnesses, especially the forensic experts, were there. To add to the complications, though, Japanese procedures do

344 345 346 347

348 349

See FORDE, supra n324, at pp. 62 et seq. See Re Vito Dell’Aglio, unreported, QBD, CO/389/95, (Transcript: Smith Bernal), 30 APRIL 1997. Under the then, s16 Extradition Act, RSC 1970 c.E-21. The example is given at p. 5 of Canadian Revised Draft Proposals for the Amendment of Article 5 of the Commonwealth Scheme, November 1989, available from the Commonwealth Secretariat; hereinafter, Canadian Proposals. Canadian Proposals, p. 5, supra n347. Supra n246.

124

Chapter 3

not permit foreign ofﬁcials to take evidence from persons under oath and Japanese law has no means of allowing witnesses to give evidence under oath for the purpose of a foreign hearing. In order to proceed with the case, the Canadian government had to ﬂy 78 witnesses to Hong Kong to give evidence there to meet British-inherited evidentiary rules.350 Sometimes, common law courts have been prepared to relax the requirement that the witness be sworn. In Dowse v Governor of Pentonville Prison,351 the House of Lords went a long way towards allowing in evidence if it was obtained in a manner having the same effect as taking an oath. In Dowse the applicant had been implicated by the statement of an accomplice. This statement was part of a report of proceedings in a Swedish District Court to add Dowse’s name to the list of defendants. Swedish law does not permit accused persons to give evidence on oath when implicating other people. However, the accomplice’s evidence had originally been given to a pre-trial review by the police, where giving false statements is a punishable offence; this fact was pointed out to him at the district court proceedings. The House of Lords accepted the accomplice’s evidence, for, although no oath was administered and it would not attract a penal sanction if it were false, the accomplice’s conﬁrmation of the truthfulness of his statements to the police amounted to an afﬁrmation. Moreover, this relaxation is in line with Canadian and U.S. practice, which seems much more liberal in this area. In Republic of Italy v Piperno,352 the Supreme Court of Canada held that as long as the witness knew the penalty for false testimony, then the deposition should be admitted. In the United States, admissibility is governed by 18 U.S.C. §3190, in part.353 The 1984 decision of Zanazanian v United States354 followed the liberal approach adopted in Collins v Loisel:355 [Unsworn] statements of absent witnesses may be acted upon by the committing magistrate, although they could not have been received by him under the law of the State on preliminary examination.

Even adopting these minimal liberalisations, however, would not solve the general problem that written evidence has to be obtained direct from a percipient witness in a formalised setting. Given the evidentiary rules in force, it is no wonder that the prima facie case proved difﬁcult to satisfy for European States. The full solution, therefore, has to take into account the rules governing admissibility as well as form. 350 351

352 353

354 355

Supra n246, and Canadian Proposals, pp. 4–5, supra n347. [1983] 2 AC 464, esp. at 470–2. Dowse was a case under the then foreign state legislation, the Extradition Acts 1870–1935, whereas Reyat was a decision under the former, stricter Commonwealth legislation, the Fugitive Offenders Act 1967. See also R v Governor of Pentonville Prison, ex p.Singh, [1981] 3 All ER 23. [1982] 1 SCR 320. Some cases suggest that if the evidence is in the correct form and authenticated by a U.S. ofﬁcial, that alone determines its admissibility – Oen Yin-Choy v Robinson 858 F.2d 1400 (1988). 749 F.2d 624 (1984). Supra n278.

Effecting the Response through International Criminal Procedures

125

Before turning to those issues, there is one further matter concerning the form of evidence; the lack of opportunity to cross-examine the witnesses. It was considered, obiter, in the early case of Re Guerin.356 That judgment cited the following dissent by Coleridge J in R v Bertrand:357 The most careful note must often fail to convey the evidence fully in some of its most important elements – those for which the open oral examination of the witness in the presence of the prisoner, judge and jury is so justly prized. It cannot give the look or manner of the witness, his hesitation, his doubts, his variations of language, his conﬁdence or precipitancy, his calmness or consideration; it cannot give the manner of the prisoner, when that has been important, upon the statement of anything of particular moment; . . ., it is in short, or it may be, the dead body of the evidence without its spirit, which is supplied when given openly and orally by the ear and eye of those who receive it.358

It may be thought that the ‘penalty’ of being sent to another State is so grave as to require the presence of those whose evidence is to be relied upon by the requesting government. Yet, that would impose severe burdens on the practice of extradition and would be a move towards trying the fugitive in the requested State. It must always be remembered that an extradition hearing is merely a preliminary step to full trial when the evidence will be thoroughly tested. Though the magistrate ought to scrutinize the depositions and see that they afforded substantial evidence of facts going to prove an offence, his Lordship knew of no authority that because they might be criticized subsequently and cross-examined too, . . . they ought not to be acted upon.359

Thus, in the United Kingdom depositions will not be rejected simply because the accused did not have an opportunity to cross-examine. The position on cross-examining in the United States and Canada is the same traditional one, despite written constitutional guarantees, including the right to a fair trial.360 In Bingham v Bradley,361 the Supreme Court of the United States held that it would defeat the purposes of the forerunner to 18 U.S.C. §3190 if the accused could demand the presence of witnesses against him. Re USA and Smith362 accepts the same principle for extradition hearings in Canada. To this extent, in all jurisdictions where evidence is demanded at the extradition hearing in order to meet some standard of proof, the 356 357 358 359 360

361 362

(1888) 58 LJMC 42; 16 Cox CC 596. (1867) 16 LTR(NS) 752. Supra n356, at 44–5 and 602–3, respectively. R v Zossenheim, (1903), 20 TLR 121 at 122. See s7, Canadian Charter of Rights and the Sixth Amendment to the U.S. Constitution provides a right to confront witnesses. NB. Art. 6 ECHR, ETS 5, does not apply to extradition hearings according to App. 10479/83 v United Kingdom, 6 EHRR 373. 241 US 511 (1916). See also, Oen Yin Choy v Robinson, supra n353, at 1406–07. 10 CCC (3d) 540, (1984).

126

Chapter 3

courts have accepted that extradition hearings cannot be perfect facsimiles of the old form committal hearings.363

9.2 Admissibility364 The one particular rule of evidence standard to all common law countries which causes most difﬁculty for civil law States seeking to present evidence is the hearsay rule. The hearsay rule, in this context, excludes a statement tendered for its truth which has not been made by a percipient witness.365 In civil law jurisdictions, however, practically all evidence which is relevant (whatever its source) is admitted and weighed-up by the investigating magistrate.366 Therefore, the exclusionary nature

363

364

365

366

It seems that some African member states of the Commonwealth have, in fact, required the presence of witnesses in contentious extradition cases; see the COMMONWEALTH REVIEW, supra n303, at pp. 57–59, especially the Kenyan and Ugandan delegates. NB. The fugitive has the right to give and call evidence – Re Gross [1998] 3 All ER 624. However, it would seem there is no right of discovery against a foreign sovereign – Fusco v O’Dea [1994] 2 IR 93 (Irish Supreme Court). See Ex p.Deprez and Fontaine 87 INT’L L REP.311 at 319–20 (Mauritius Supreme Court). In R v Governor of Brixton Prison, ex p.Levin [1997] 3 All ER 289, the United States was the requesting State, but the hearsay rule still proved problematic with respect to computer print-outs. 1982 REVIEW, supra n102, at para. 5.12. In the Rules of Evidence and Procedure for the International Criminal Tribunal for the Former Yugoslavia, IT/32/Rev. 34, there is no bar on hearsay evidence and the Tribunal is given a broad discretion to determine its own detailed rules. Rule 89 General Provisions (A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. (C) A Chamber may admit any relevant evidence which it deems to have probative value. (D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. (E) A Chamber may request veriﬁcation of the authenticity of evidence obtained out of court. (F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form” (emphasis added). In Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No. IT-94-1-AR72 (1995), the transcript reveals the interplay of civil law and common law systems (p. 591 line 17 – p. 592 line 14). In the end the Presiding Judge ruled at p. 600 as follows: 8 As I said, as we said in our opening remarks, this is not a national system. We are 9 guided by our Rules of Procedure and Evidence that the Tribunal has developed. When 10 we have in Rule 89(A), when it provides that the Chamber shall not be bound by national 11 rules of evidence, that is intentional, that was deliberate, on the part of drafters of the 12 rules. So we consider that we look to our rules of evidence to determine whether or not 13 evidence is admissible. 14 Rules 89 of our rules of evidence, of course, is the guiding rule. 89(C) provides that a 15 Chamber may admit any relevant evidence which it deems to have probative value. We 16 consider that, based on the proffer of the Prosecutor and considering the objections of the 17 Defence, the testimony of Miss Greve certainly is relevant and it appears that it has 18 probative value.

Effecting the Response through International Criminal Procedures

127

of Anglo-American laws of evidence is alien to those States with which the United Kingdom conducts most of its extradition practice. Had the prima facie rule not been abolished with respect to European requests, then a new law would have had to have been drafted to relax the hearsay rule in extradition cases.367 If, as is suggested, the prima facie rule ought to have been retained, it would be essential to change the rules of evidence to make it workable. Such a proposal is in line with Australian and U.S. practice. In the Australian case of Prevato,368 concerning an Italian request, the Federal Court held [that it] is the substance . . . of the evidence which is important so that statements of co-accused were admissible evidence in establishing whether the offence was one for which extradition would be granted . . ., even though such statements would not be admissible at a trial in New South Wales.

The United States primary authority is Collins v Loisel.369 The Supreme Court was prepared to accept evidence not admissible in an ordinary hearing and received hearsay. Although the admission of written statements is more restricted in the U.S.A. at pre-trial hearings than in committal hearings in the United Kingdom, the general principle behind this judicial statement could be applied to United Kingdom practice. Subsequent to Collins v Loisel, various courts have reafﬁrmed the Supreme Courts views: It is already well established that at least one level of hearsay is competent for extradition purposes.370

Yet, it is frequently the case that the evidence which the requesting State wishes to submit is not merely a sworn statement of a witness, but rather a report of what a witness said to a police ofﬁcer or an investigating magistrate – that is, it is multiple hearsay. The Court of Appeals in Zanazanian dealt with this matter,

367

368 369 370

19 Under Rule 89(D), the Chamber may exclude evidence if its probative value 20 substantially outweighed by the need to ensure a fair trial. So that our determination at 21 this time that the testimony is relevant, and that it appears to have probative value, does 22 not in any way bind the Trial Chamber from excluding the testimony, should we make 23 such a determination after hearing the testimony and hearing the context in which it is 24 given. 25 We are very cognizant of the fact that we are judges, experienced judges. We are not a 26 jury. We believe we can listen to this testimony that we consider to be relevant and 27 appears to have probative value, and give it the appropriate weight that is necessary.” Similar rules have been introduced to allow documentary hearsay into domestic criminal trials – see ss23–26 Criminal Justice Act 1988. Supra n327, headnote. Supra n278, at 317. Zanazanian v United States, supra n354, at 626 (1984). See also Argento v Horn, 241 F.2d 258 at 263 (1957); President of the United States, ex rel.Caputo v Kelly, 190 F.Supp 730 at 737 (1957); and U.S., ex rel.Sakaguchi v Kaulukukui, 520 F.2d 730 (1975).

128

Chapter 3

too.371 Some of the evidence consisted of police ofﬁcers’ reports describing a witness’ statement. The court accepted that the ‘extra hearsay step might in certain cases result in decreased reliability’, but found the present reports ‘sufﬁciently reliable to be deemed competent’. The police ofﬁcer’s reports were based on tape recordings and contemporaneous notes of the interrogations. Thus, the evidence was admissible. Under the Extradition Act 2003, where a prima facie case is still required with respect to Category 2 States, then s84(2) apparently provides that the extradition judge shall apply the normal English rules of evidence: 84(2) In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if – (a) the statement is made by the person to a police ofﬁcer or another person charged with the duty of investigating offences or charging offenders, and (b) direct oral evidence by the person of the fact would be admissible.

Thus, it would seem that the statement must be a transcript of the witnesses statement as taken down by the police ofﬁcer or other ofﬁcial investigator. However, s84(4) provides for some ﬂexibility: 84(4) A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).

Therefore, if what is presented in the documentary evidence is a police ofﬁcer’s or some other ofﬁcial investigator’s summary report of a percipient witnesses evidence, that evidence will be admissible because it is a summary of a statement where “direct oral evidence by the person of the fact would be admissible”.372 It would seem that the United States has little or no problem in accepting hearsay evidence in proving probable cause for extradition matters. Therefore, accepting that those deciding extradition cases at ﬁrst instance are expert in extradition matters through long acquaintance and are sufﬁciently competent to be able to assess the weight, merit and worth of hearsay evidence, it was sensible, even if the prima facie requirement is only to be retained for States outside Europe, and not even all of those, for the United Kingdom to amend its laws to receive such evidence in extradition hearings. The United States position is based on the equivalent evidence being admissible in the requesting State. At ﬁrst glance, this new approach seems

371

372

Supra n354 at 627. See also, Sakaguchi v Kaulukukui 520 F.2d 726 (1975), Emami v United States District Court for N.D. California 834 F.2d 1444 at 1451 (1987), Lui, supra n69, and Oen YinChoy, supra n353, at 1406. Of course, there still needs to be adequate evidence, even if it is hearsay – see In the Matter of Surrender of Elizaphan Ntakirutimana, 988 F.Supp 1038 at 1044, but reversed on re-application, 183 F.3d 419 (1999).

Effecting the Response through International Criminal Procedures

129

reasonable: an extradition hearing is to accommodate the practice and procedure of both the requesting and requested States.373 Thus, hearsay evidence, inadmissible in a committal hearing in the United Kingdom would only be received if it were admissible in the requesting State. It may seem illogical to retain the prima facie requirement but relax the admissibility rules, yet the prima facie rule provides a safeguard in a sensible manner to a fugitive threatened with trial in another State. It is the rules of evidence which merely hinder the requesting State in its attempt to show a prima facie case. Given that extradition is founded partly on reciprocity, allowing evidence to be admitted that could be put forward in a trial in the requesting State and leaving the extradition judge to assess its value seems fair and reasonable. An approach along those lines has been taken in Article 6 of the 2002 revision to the Commonwealth Scheme.374 Acknowledging that non-Commonwealth extradition is frequently granted without the need for a prima facie case, the Australian government suggested similar action at the 1986 Harare Law Ministers’ Conference.375 It was rejected then, but Article 6 of the 2002 Scheme permits the prima facie case requirement or its equivalent to be met by a record of the case received by the requested State, even if evidence in that record does not meet the rules relating to admissibility of evidence under the requested State’s law. Article 6(2) Where a warrant has been endorsed or issued as mentioned in clause 3(1), the competent judicial authority may commit the person sought to prison to await extradition if – (a) the contents of a record of the case received, whether or not admissible in evidence under the law of the requested country, and any other evidence admissible under the law of the requested country, are sufﬁcient to warrant a trial of the charges for which extradition has been requested; and (b) extradition is not precluded by law, but otherwise will order that the person be discharged.

The extradition court in the requested State will assess the reliability of the evidence in the record in deciding whether a prima facie case requirement has been met, but admissibility of the evidence presented will be left to the full trial if the fugitive is extradited. While the approach found in Article 6 of the Commonwealth Scheme is appropriate to meet the difﬁculties raised by the hearsay rule, it leaves open the question as to whether evidence obtained illegally or improperly should be admitted at an extradition hearing. In Ex p.Francis,376 the Divisional Court in England refused to apply the generic exclusionary rule of the English law of evidence, s78 Police and

373 374 375 376

1982 REVIEW, at para. 5.11, supra n102. Supra n13. LMM(86)64. R v Governor of Belmarsh Prison, ex p.Francis [1995] 3 All ER 634.

130

Chapter 3

Criminal Evidence Act 1984, to extradition hearings. In Al-Fawwaz377 the House of Lords held that the extradition magistrate had been right to allow two witnesses to remain anonymous for safety reasons and that such issues could be decided at the full trial following surrender. On the other hand, in Re Extradition of Contreras,378 a United States District Court in 1992 refused extradition where the requesting State’s case against the fugitive was based on confessions from alleged accomplices obtained by threats or torture and which the accomplices had recanted at the ﬁrst opportunity. After the events of 11 September 2001, however, reliance on improper methods in relation to obtaining evidence, the so-called ‘extraordinary renditions’ of suspects to States that are not averse to the use of torture, the denial of legal rights to those held in Guantanamo Bay, has not only impacted upon trials in the United States, but has raised concerns for extradition requests. in A et al. v SSHD,379 a case concerning detention under s21 Anti-Terrorism, Crime and Security Act (ATCSA) 2001 where the propriety of evidence obtained outside the United Kingdom was in issue. According to Laws and Pill LJJ: 253. But I am quite unable to see that any such principle prohibits the Secretary of State from relying, for the purposes of ATCSA ss.21 and 25, on evidence coming into his hands which has or may have been obtained through torture by agencies of other States over which he has no power of direction. If he has neither procured the torture nor connived at it, he has not offended the constitutional principle which I have sought to outline. In that case the focus shifts, as it seems to me, back to the law of evidence. Given that the speciﬁc rule against involuntary confessions is not engaged (we are not dealing with tortured defendants), the general rule – evidence is admissible if it is relevant, and the court is not generally concerned with its provenance – applies.

Laws LJ did hold at paragraph 132 that it might be a different consideration when reviewing the Secretary of State’s discretion in extradition cases,380 but could see no general issue against relying on evidence obtained by torture as long as this had not been procured or connived in.381 This lamentable decision by the Court of Appeal was fortunately reversed at the ﬁrst possible opportunity by the House of Lords in the case of A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) (2004), A and others (Appellants) (FC) and

377 378 379 380

381

[2002] 1 AC 556 at paragraph 44 per Lord Slynn. 800 F.Supp. 1462 (1992). [2004] All ER (D) 62. See also, Redress Press Release, 12 AUG 2004. See R (on the application of Ramda) v Secretary of State for the Home Department, [2002] EWHC 1278 at paragraphs 22 et seq. (Admin), where the case was referred to the Home Secretary because the evidence might have been improperly obtained in France. The issue was not before the House of Lords on appeal – [2005] 3 All ER 169 at paragraphs 71 ( per Lord Bingham) and 220 ( per Baroness Hale). In Zaradari v SSHD, unreported, QBD, 9 April 2001, the Court was prepared to transfer evidence to Pakistan holding that human rights considerations had no part to play, but equally that there was no direct parallel with extradition law.

Effecting the Response through International Criminal Procedures

131

others v Secretary of State for the Home Department (Respondent) (Conjoined Appeals).382 97. In my opinion therefore, there is a general rule that evidence obtained by torture is inadmissible in judicial proceedings.

The problems of gathering sufﬁcient evidence which satisﬁes the requested State’s laws relating to the admissibility of evidence in order to prove the fugitive has a case to answer was a double burden, especially to civil law States which had no domestic equivalent of either rule of law. The level of evidence needed to prove a prima facie case is not demanding, but it does provide the fugitive with a safeguard against arbitrary removal. If the requesting State is allowed to collect that evidence according to its own evidential rules and practices and the requested State will accept it in that form, then there is no need to abolish the prima facie requirement, not even for civil law States, although international human rights guarantees should be imposed with regard to how the evidence was obtained. Nevertheless, now that the United Kingdom has extended the removal of the prima facie requirement to some members of the Commonwealth and to the United States, it may be that defending the workability of the requirement by relaxing rules of evidence is a tad moot.

9.3 Trial in the Requested State The ﬁnal issue concerning evidence and fugitive offenders, relates to the growing number of conventions which require the State to prosecute if it does not extradite.383 There is also an argument, advanced in Chapter Five below, that all politically or ideologically motivated offenders, whether they fall within the traditional deﬁnition of the political offence exemption or not, ought to be tried in the requested State rather than be surrendered. The problem would be that the witnesses necessary for the trial would be in the locus delicti. While concessions might be in order for an extradition hearing, the full vigour of common law rules of evidence would have to be applied to an ‘extraterritorial’ trial. Thus, special procedures would again have to be devised.384

382 383

384

[2005] UKHL 71, per Lord Hoffmann at paragraph 97. For an example of the standard clause, see Art. 7 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 10 INT.LEG.MAT.133 (1971). The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. . . . See the special rules needed for the ICTY, supra n366 and infra n393.

132

Chapter 3

A formal system is contained in the burgeoning number of mutual legal assistance treaties.385 The common law world has become aware of their beneﬁts only in the last two decades, but if trials are going to be held of persons accused by other countries of offences outside the territory of the prosecuting State then such treaties will be indispensable. The scope for assistance in prosecuting the fugitive in the requested State is very large. The Commonwealth Scheme,386 for instance, provides, inter alia, in paragraph 1(3) that assistance includes “examining witnesses, obtaining evidence, facilitating the personal appearance of witnesses, effecting a temporary transfer of persons in custody to appear as a witness and obtaining production of judicial or ofﬁcial records”. The U.S.-Italian mutual legal assistance treaty387 of 1984 went further than the Commonwealth Scheme in that it allowed the issuance of an “international subpoena” to force a person to travel to the other State to give evidence if requested.388 Measures such as these will be essential if the policy of aut dedere, aut judicare is to practised to its full extent. An alternative but similar practice exists under the extraterritorial laws in the context of the juryless courts used in relation to the conﬂict in Northern Ireland.389 Under the United Kingdom’s Criminal Jurisdiction Act 1975, and the Republic of Ireland’s Criminal Law (Jurisdiction) Act 1976, a person can be tried for an offence committed in the other jurisdiction. The statutes make provision for taking evidence in the other jurisdiction, too. Part of this procedure allows for the accused, either in person or through a representative, to be present at the evidential hearing along with a member of the judiciary. In fact, in a 1982 case under the Republic’s 1976 Act, a British judge sat in a Dublin court to hear evidence in relation to a trial being held in Belfast.390 Finally, there has been an interesting development in English rules of evidence that may be of assistance in permitting a witness who is abroad to give evidence in a trial in England. Section 32 of the Criminal Justice Act 1988 allows a witness abroad to give evidence by means of a live television link with the court; the result is the same as if he were there in person and answers most of the problems raised by common law rules of evidence. It could usefully be adopted by all common law States in order to assist with trials involving the need for testimony from abroad.

385 386 387

388 389

390

See supra n22, et seq. Supra n13. See Nadelmann, Negotiations in Criminal Law Assistance Treaties, 33 AM.J COMP.L 467 at pp. 492 et seq. (1985). See Zagaris and Simonetti, supra n22, at pp. 222–3. The reciprocal legislation followed on the report of the Law Enforcement Commission, Cmnd 5627. See The Guardian p. 3, 4 JUN 1982. The case concerned the murder of the former Speaker of Stormont, Sir Norman Stronge. See also, O’HIGGINS AND HAYES, LESSONS FROM NORTHERN IRELAND (1990); HOGAN AND WALKER, THE LAW AND POLITICAL VIOLENCE IN IRELAND (1990); AND WALKER, THE PREVENTION OF TERRORISM IN BRITISH LAW, 2nd ed. (1992).

Effecting the Response through International Criminal Procedures

133

Before ﬁnishing this section, there is one further matter. The cases of trial away from the locus delicti will usually deal with politically or ideologically motivated offenders whose group or supporters will be in dispute with the requesting State. One of the major problems, however, for trials involving politically or ideologically motivated offenders is that their colleagues may be unwilling risk appearing in court to give evidence for the defence. This situation occurred in Kakis v Government of the Republic of Cyprus391 where the House of Lords refused the extradition of Kakis because an alibi witness, A, also in the United Kingdom, refused to return to Cyprus for fear of ill-treatment by his political opponents. With trials taking place in the requested State, the pressure may be less but would still be present, and such witnesses would still have to get to the requested State in order to give evidence.392 Some form of personal guarantee of safe passage may be necessary if courts are to hear all relevant evidence. When creating ab initio the rules of procedure and evidence for the International Criminal Tribunal for the former Yugoslavia,393 several safeguards were built in to protect the anonymity of witnesses for fear of reprisals and, under Rule 85, both sides are entitled to call witnesses, while under Article 21 of the Statute established by the Security Council under Chapter VII of the United Nations Charter, the accused shall be entitled to the following minimum guarantees, in full equality: (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. (emphasis added)

9.4 Conclusion This section has focussed almost exclusively on common law procedures, especially those of the United Kingdom because of the large number of extradition requests it receives from its civil law neighbours. The reason is quite simply the double requirement common law States impose of proving that the fugitive has a case to answer according to common law rules of evidence. Civil law States are

391 392

393

[1978] 2 All ER 634. The contrasting position was seen in the release by German courts of El Motassadeq following his earlier conviction for involvement in the attacks of 11 September 2001 because the United States refused to allow witnesses for the defence in their custody to give evidence on his behalf – The Guardian p. 17, 5 MAR 2004; p. 13, 8 APR 2004. The Statute of Tribunal was presented to the Security Council in The Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 32 INT.LEG. MAT.1159 (1993). The Statute was adopted by the Security Council in Resolution 827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993). The Rules of Procedure and Evidence (hereinafter, Rules) are now at Revision 34 – IT/32/Rev.34. On obtaining evidence from States, see Bla·ki,c, IT-95-14-AR108 bis, 29 October 1997.

134

Chapter 3

generous in the rules imposed in relation to the admissibility of evidence and only require a statement of the facts of the offence, anyway, to satisfy an extradition request. Owing to the need to improve extradition relations, the United Kingdom decided to abolish the prima facie case requirement with respect to the other parties to the European Convention on Extradition in 1990. However, it may be that this move was misguided. The prima facie requirement provided the fugitive with a useful safeguard against arbitrary removal from the State; its demands were not onerous, but it ensured that the fugitive would only be surrendered when there was a case to answer.394 The difﬁculties with it arose from the fact that civil law States had to gather this limited amount of evidence in a short time in a fashion that would make it admissible under common law rules of evidence with which they were not familiar. The prima facie case requirement is a legitimate imposition in extradition relations: the rules of evidence, designed to protect an accused at a full trial, are inappropriate for an extradition hearing which, by treaty, has to be convened swiftly. There is little fear of evidence being fabricated if the common law rules are not applied with full force because the requesting State would still be required to meet its own rules of evidence. Thus, the solution adopted by the 2002 Commonwealth Scheme is much better, requiring the requesting case to show that there is a case against the fugitive, but allowing in the evidence thereof so long as such evidence would be admissible in the requesting State. Prima facie and its equivalents were never the problem, it was the hurdles placed in the way of satisfying its demands that caused the difﬁculties and it is those, especially the rules of evidence, which ought to have been relaxed.

10. Res Judicata and Appeals Partly to compensate for the difﬁculties in producing evidence to prove the fugitive had a case to answer, the common law States permitted the requesting State to make as many applications for the surrender of the fugitive as it wished,395 subject to an argument of abuse of process. There is no estoppel because the proceedings are not ﬁnal. Thus, a fugitive cannot plead res judicata. The response is uniform throughout the common law world and is useful given that it is rare for the requesting State to have a right of appeal. In the United States, the case of Artukovic v Rison396 held that repeated requests could be made for a fugitive, and according to

394

395

396

See the allegations in the McAliskey case, supra n39, about the lack of evidence the German government has against her. Cf. The Anglo-Brazilian Extradition treaty of 1995, in force 1997, UKTS 58, 1997, provides in Article 3.1(f) that the United Kingdom cannot request a person from Brazil on the same facts if a previous request has been turned down. 628 F.Supp 1370 at 1375; 784 F.2d 1354 at 1356 (1986). See also, Extradition of Atta, supra n72,

Effecting the Response through International Criminal Procedures

135

Hooker v Klein397 the only constraint is that the government act fair-mindedly. A similar position has been taken in the Australian case of Wiest v DPP398 and in the British case of Atkinson v Government of the U.S.A.399 However, it does seem a somewhat cumbersome means of challenging the ﬁrst instance decision; only if the requesting State were to fail because it did not meet evidential requirements ought it to be employed. Otherwise, the requesting State should have a more conventional method of challenging an initial failure.400 Indeed, extradition appeals in general in common law jurisdictions are not straightforward for the accused. Rather than allowing him a full appeal on law and fact, he is only permitted to seek review, usually restricted to appealing points of law by way of an application for a writ of habeas corpus. There is no reason for such restrictive rules for either the requesting State or for the fugitive. Full appeal should be available to both sides and it is good to see that this has been adopted in the United Kingdom Extradition Act 2003, ss26–34 and ss103–116.401

397 398 399 400

401

at 1065 (1990), where it was held that a subsequent request was the only option open to a government when the extradition magistrate refused surrender under 18 USC §3184. 573 F.2d 1360 at 1365–8 (1978), cert.den. 439 US 932. (1988), 86 ALR 464. [1971] AC 197. Australia (s21 Extradition Act 1988) and possibly Canada (s28(1) Federal Courts Act, RSC 1970 c.10, 2nd Supp.); cf. Minister of Indian Affairs and Northern Development v Ranville, [1982] SCR 518, followed in the extradition case of Re Meier and The Queen, (1984), 6 CCC(3d) 165). The U.S. does not permit the requesting state a right of appeal. Cf. §3215 of the proposed Senate Bill, S1722 of the 96th Congress which fell with that Congress. See also Senator Thurmond’s Extradition Bill of 1981, §3195 of which would have provided a right of appeal for the requesting state. In the Matter of Mackin, 668 F.2d 122 at 128 per Friendly CJ (1981). In United States v Doherty, DC (SDNY), Slip Opinion June 25, 1985 (LEXIS), the U.S. on behalf of the United Kingdom, sought a declaratory judgment against a refusal to extradite Doherty. The application was made under the Declaratory Judgment Act, 28 USC §§2201 et seq; the Act had been used by a fugitive in conjunction with habeas corpus in Wacker v Bisson 348 F.2d 602 (1965). Haight J was not bound by Wacker and followed the dissenting judgment that had asserted the Declaratory Judgment Act was inapplicable to extradition hearings, (per Rives J at 612–3). However, Haight J went on to consider, obiter, whether the requesting state would be able to seek review under the Act if it did apply to extradition hearings. Once again he found against the requesting state, saying reapplication for extradition to a magistrate under 18 USC §3184 was the appropriate response to a refusal to grant extradition. His reasoning is sound, for if the Act did provide an avenue for review, there would be no need to amend extradition legislation as proposed in the two failed Bills discussed above. However, the result is to be regretted. On the reform legislation in general see Bassiouni, Extradition Reform Legislation in the United States: 1981–83, 17 AKRON L REV.495 (1984). However, appeal to the House of Lords is now limited under ss32 and 114: 32(4) Leave to appeal under this section must not be granted unless – (a) the High Court has certiﬁed that there is a point of law of general public importance involved in the decision, and (b) it appears to the court granting leave that the point is one which ought to be considered by the House of Lords. This is in line with appeals to the House of Lords in ordinary English criminal law cases.

136

Chapter 3

11. Convicted Fugitives So far it has been assumed that the transnational fugitive offenders were merely accused of a crime, but extradition is also available to obtain the return of already convicted fugitives.402 There is less fear of falsely disrupting the fugitive’s life if he has already been convicted, so the procedures are simpler. However, one matter of concern relates to the fact that civil law States sometimes have the power to prosecute a fugitive in his absence.403 There are two types of conviction in absentia: those cases where the fugitive is permitted to challenge the conviction on his return, known as a contumacious conviction, and those where he is not. In the latter situation, it is hard not to proceed as though the fugitive is convicted, whereas contumacious convictions have been treated as if they left the fugitive in the same position as if he had been merely accused.404 While such an approach may be suitable for contumacious convictions, it is arguable that the inability to challenge the conviction in absentia is a violation of the fugitive’s fundamental right to a fair trial and that refusal to grant surrender could be justiﬁable on that ground.405 The way is left open, though, on that approach for the courts to have to review the requesting State’s standards of justice.406 In one other case, trial in absentia has an equally direct application to transnational fugitive offenders. Under Rule 61 of the Rules of Procedure of the Yugoslav and Rwanda Tribunals,407 it is provided that where the Prosecutor has taken all reasonable steps to obtain the attendance of an accused, the Trial Chamber can receive the evidence against him and determine that the accused committed the crimes set out in the indictment. If the Chamber does so ﬁnd, then under paragraph (D), it can issue an international arrest warrant in respect of the accused which shall be transmitted to all States.

402

403

404 405

406 407

In re Burke [2001] 1 AC 422., held that the period of parole after having served time in prison still counts as part of the sentence for the purpose of returning a convicted fugitive. E.g. France convicted the alleged Dirty War naval ofﬁcer, Astiz in 1990. See also CASSESE, TERRORISM, POLITICS AND LAW, at p. 43 (1988). Common law countries tend to allow trial in absentia only if the accused has been charged in front of a sworn jury and then absconds – The Guardian p. 1, 9 JUN 1993, and p. 11 16 JUN 1993. See Wiest, supra n398; R v Governor of Pentonville Prison, ex p.Zezza, [1983] 1 AC 46. The French courts refused the extradition of a U.S. national to the United States on the ground that he would not be guaranteed a retrial in Pennsylvania – International Herald Tribune p. 2, 6–7 DEC 1997; The Guardian p. 16, 19 FEB 1999; pp. 2 and 3, 2 APR 1999; p. 19, 15 NOV 2001; p. 17, 1 OCT 2002. See also, The Guardian p. 10, 3 DEC 2005. NB. The requested State has to take it on trust that the requesting State will honour the promise of a retrial – Peci v Governor of Brixton Prison, The Times, 12 January 2000. Zezza, supra n404, at 51–56. Yugoslav, supra n393; Rwanda – UNSC Res.935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994). Rules of Procedure and Evidence, http://www.ictr.org/ENGLISH/rules/210505/ 210505.pdf, 7 June 2005.

Effecting the Response through International Criminal Procedures

137

Given that the two Tribunals are set up under Chapter VII and that States are obliged to surrender those indicted, subject to only limited exceptions, but that many of the most notorious transnational fugitive offenders are protected by their own governments, then the effect of this trial in absentia is to effectively ‘exile’ the accused in his home State. If he were to travel abroad, then all States are obliged to transfer him to the relevant Tribunal for trial. As a method of limiting impunity, Rule 61 trial in absentia is a useful mechanism in constraining transnational fugitive offenders.

12. Conclusion Procedures for surrendering persons accused or convicted of crimes elsewhere, especially those procedures in common law States, can prove to be overly burdensome. The bulk of this chapter has been spent considering the difﬁculties created by common law States’ failure to conclude mutual legal assistance agreements until recently, their limited extraterritorial jurisdiction, their evidential requirements and their restrictive and exclusionary rules of evidence. The “creaking steam engine”408 is much in evidence. However, the developing co-operation at all levels by States to improve the smooth running of extradition is having a recognisable effect, with the changes occurring predominantly in the common law States. Mutual legal assistance treaties have now been concluded by several common law States, age-old procedures are being reviewed and, sometimes, replaced, and generally there is a trend to make extradition easier. Most dramatic has been the implementation of the European Arrest Warrant with no requirement of double criminality among the twenty-ﬁve member States of the European Union. The balance between administrative convenience and the fugitive’s rights is coming down ﬁrmly in favour of the former. Given the catalogue of other protections available to a fugitive, to be considered below, over-restrictive procedural rules are an unnecessary and inappropriate addition to that list. However, the procedures must be fair to both sides and the fact that the fugitive’s whole way of life will be affected by surrender to a foreign State should not be ignored. As common law States increasingly adopt positions in line with the more straightforward and explicit civil law procedures, it means that extradition law will be in a state of ﬂux for many years yet as the new policies and practices are deﬁned and applied. More generally, the use of universal jurisdiction as a means of avoiding impunity without the need for transfer of any fugitive is also growing. The relationship between international crimes, universal jurisdiction and immunity has developed dramatically since the Pinochet cases made the breakthrough in 1998 and 1999. Never before has the international community utilised so many mechanisms to respond to international crime. 408

The Observer, p. 4, 29 APR 1979.

Chapter 4 Restrictions on Return 1. Introduction Extradition law is permeated with special defences peculiar to its processes. Even if the requesting State satisﬁes the procedural requirements necessary for surrender to be granted, the transnational fugitive offender can still plead that his surrender would violate various provisions that tend to be included in all treaties:1 other surrender mechanisms relating to international courts have adopted some of these provisions. Furthermore, there are some generally available defences to criminal charges which can also be utilised in an extradition hearing.2 In addition, however, international human rights law is pertinent to any surrender hearing. Since the end of the Second World War II, several international and regional human rights conventions have been promulgated. The ﬁrst was the European Convention for the protection of Human Rights and Fundamental Freedoms,3 which was followed by 1 2

3

E.g. Specialty, the military offence exception, the non-extradition of nationals, to name but a few. In Heeralall v Commissioner of Prisons 107 INT’L L REP.168 at 174–75, the Mauritius Supreme Court held that it was possible to argue that Constitutional guarantees provided in the requested State may not be available in the requesting State. See also, United States v Burns (Supreme Court of Canada) [2001] 1 S.C.R. 283; 2001 SCC 7. Done at Rome, Italy, 1950, ETS 5 (1950); ECHR hereinafter. See especially, DRZEMCZEWSKI, THE POSITION OF ALIENS IN RELATION TO THE ECHR: A GENERAL SURVEY. H/COLL (83)8. This is a paper presented to the Colloquy on ‘Human Rights of Aliens in Europe’, held at Funchal – Madeira, Portugal (17–19 October, 1983).

Restrictions on Return

139

the International Covenant on Civil and Political Rights,4 the American Convention on Human Rights,5 the Convention Against Torture6 and the African Charter on Human and Peoples’ Rights.7 It has become trite to state that none of these conventions prohibits extradition.8 Indeed, it would be strange if instruments designed to protect human rights were to interfere directly in a process by which States assist each other in the interests of law enforcement.9 Originally, there was some debate as to whether international human rights treaty obligations should trump obligations under extradition treaties.10 Nevertheless, given that it is not beyond the bounds of possibility that surrendering a fugitive to another State might lead to a violation of that person’s rights, the question is therefore raised as to whether an order for surrender might be challenged as an infringement of the fugitive’s rights

4

5

6

7

8

9

10

UNGA Res.2200A(XXI), UNGAOR, 21st Sess., Supp.No.16, 52 (1966); 999 UNTS 171; 6 INT.LEG.MAT.368 (1967); 61 AM.J INT’L L 870 (1967): hereinafter, ICCPR. Done at San José, Costa Rica, 22 NOV 1969; hereinafter ACHR: O.A.S. Ofﬁcial Records, OEA/Ser.K/XVI/1.1, Doc.65, Rev.1, Corr.2 of 7 JAN 1970; 9 INT.LEG.MAT.673 (1970). See also, the American Declaration of the Rights and Duties of Man 1948; hereinafter ADRDM: 43 AM J INT’L L Supp.133 (1949). United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 23 INT.LEG.MAT.1027 (1984) & 24 INT.LEG.MAT.535 (1985) – Article 3. Done at Banjul, The Gambia, 1981; hereinafter ACHPR: O.A.U. Doc. CAB/LEG/67/3/Rev.5, 21 INT.LEG.MAT.58 (1982). App. 7456/76 v Belgium, 8 D+R 161 and Altun v Germany, App. 10308/83, (1983), 5 EHRR 611 (1985), 7 EHRR 154. Trechsel, on the basis of the Council of Europe’s DIGEST OF STRASBOURG CASE-LAW RELATING TO THE ECHR, vol 1, pp. 117–155 (1984), suggested at that time that there were over 40 decisions of the Commission holding that an extradition might still have Convention repercussions; Vogler, Scope, infra n9. The same applies to deportation: App. 9203/80 v Denmark, 24 D+R 239. NB. Article 4 of Protocol No. 4 to the ECHR, ETS 46 (1963), in force 2 May 1968, prohibits the collective expulsion of aliens. Protocol No. 7, ETS 117 (1984), 7 EHRR 1 (1985), provides in Article 1(1) that no lawfully resident alien shall be expelled without the right to submit evidence, to appeal or to be represented. Vogler, The Scope of Extradition in the Light of the ECHR, at pp. 663 et seq. of MATSCHER & PETZOLD, PROTECTING HUMAN RIGHTS: THE EUROPEAN DIMENSION (1988); hereinafter Vogler, Scope. The Commission recalls its jurisprudence constante according to which no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country is as such guaranteed by the Convention. App. 10032/82 v Sweden, (1984), 6 EHRR 555 at 557. See also, Kindler, infra n16, at paragraph 13.2. See Dugard and van den Wijngaert, Reconciling Extradition with Human Rights, 92 AM.J.INT’L L 187 (1998). Additionally, with respect to the Americas, under Article 64 of the ACHR a member State can seek the advisory opinion of the Inter-American Court of Human Rights and, in a decision at the request of Peru (Advisory Opinion No. OC-1/82 of 24 SEPT 1982), although not directly to do with extradition, it held that it can review the human rights issues in any other treaty within the Americas. This jurisdiction should extend to extradition treaties. The only limit concerns treaties where the obligations affect mainly non-American States, but that would not be the case as regards bilateral treaties between American and non-American States; the obligations therein would affect each State equally – where an American State is requested to surrender a fugitive, surely it should be able to seek an advisory opinion with regard to any human rights matter arising under the extradition treaty (Cf. DAVIDSON, THE INTER-AMERICAN HUMAN RIGHTS SYSTEM, pp. 243–49, esp. pp. 248–49 (1997)). The Advisory Opinion procedure under Article 47 of the ECHR deals with requests from the Committee of Ministers.

140

Chapter 4

under an international human rights convention.11 Since none of the conventions prohibits extradition, it is a delicate balancing exercise to apply their provisions to an extradition request. On the one hand, l’Institut de Droit International has suggested that [in] cases where there is a well-founded fear of the violation of the fundamental human rights in the territory of the requesting State, extradition may be refused, whosoever the individual whose extradition is requested and whatever the nature of the offence of which he is accused.12

This apparently far-reaching clause is actually so hedged around with interpretative discretion that it offers no additional protection to the fugitive than already exists in many treaties; when is a fear well-founded, which human rights are fundamental? Yet it reveals that human rights can in some circumstances override even the international enforcement of criminal justice.13 Weighted against such protective views, the European Court of Human Rights recognised in Fox, Campbell and Hartley v United Kingdom14 “the need for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights”. The Court took account of the “special nature of terrorist crime and the exigencies of dealing with it”. Extradition may be the subject of review with respect to human rights conventions, but there is still a wide margin of appreciation for State practice. Case law under the ECHR and ICCPR has considered this matter in some detail. While the various conventions are not identical, they protect similar rights and so it is likely that extradition will be seen to violate the same sorts of guarantees in the ECHR, ICCPR, ACHR and ACHPR. On that understanding, discussion of the proliﬁc case law under the ECHR and ICCPR15 should be relevant to interpreting the provisions of the ACHR and the ACHPR.

11

12 13

14 15

All of the Conventions referred to above extend their protection to all persons within the jurisdiction of member States: Article 1, ECHR; Article 2 ICCPR; Article 1 ACHR; Article 2 ACHPR. See also, the OHCHR Report to the Security Council Counter-Terrorism Committee, Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism, July 2003. Extradition Resolution no. IV, 68-II ANN.IDI, Session de Cambridge, at pp. 304–06 (1984). See van den Wijngaert, Applying the ECHR to Extradition: Opening Pandora’s Box, 39 INT’L & COMP.LQ 757 (1990). Series A, Vol. 182 at paragraph 28 (1990). In Glaziou v France, CCPR/C/51/D/452/1991, 27 July 1994, the HRC held, in line with a reservation by France to Article 5.2(a) of the Optional Protocol, that it could not deal with a communication which had already been dealt with by the European Commission of Human Rights. La France fait une réserve à l’alinéa a) du paragraphe 2 de l’article 5 en précisant que le Comité des droits de l’homme ne sera pas compétent pour examiner une communication émanant d’un particulier si la même question est en cours d’examen ou a déjà été examinée par une autre instance internationale d’enquête ou de règlement. Paragraphs 6 and 7.2.

Restrictions on Return

141

There are two possible approaches when it comes to applying international human rights law obligations to surrendering a transnational fugitive offender. On the one hand, it might be argued that the rights in the convention should be given ‘extraterritorial’ effect in order to judge the requesting State’s institutions and procedures, even if that State is not a party to the particular Convention. On the other hand, there could be a ﬁnding that the requested State would violate its obligations under the Convention by returning the fugitive to a place where the rights he enjoys in the requested State will not necessarily be respected. The case law has adopted this second approach.16 The object of this chapter is to review and analyse all of these restrictions on return. There is no longer such a clear distinction between internal guarantees in extradition treaties and international human rights law standards that might protect the transnational fugitive offender against surrender.17 For instance, the right to life overlaps with obligations on the requested State not to surrender someone where the death penalty might be imposed in the requesting State where it could not be in the requested State. Fair trial guarantees in human rights conventions correspond in part with the political offence exemption18 and with clauses preventing extradition if the transnational fugitive offender might be prosecuted, punished or prejudiced on account of her/his race, religion, nationality or political opinion. Moreover, the latter protection found in extradition law is based upon the same premise that established the right to freedom of religion, thought, conscience, belief and political opinion. The restriction on surrender where it would be unjust or oppressive can reﬂect fears of an unfair trial in the requesting State or even the threat of inhuman or degrading treatment or punishment. As such, the focus here is on the various protections open to a transnational fugitive offender from whichever system as part of the overall response to international crime.19

16

17

18

19

See The Soering Case, Series A, Vol. 161, paragraphs 81–91, esp. paragraph 88; Kindler v Canada, UN Human Rights Committee, 14 HRLJ 307 (1993). Both discussed below. For example, with respect to surrender to Category 1 States under the British Extradition Act 2003 dealing with requests under the European Arrest Warrant, internal protections against extradition have been greatly reduced in number, partly because the process is subject to the ECHR and because the requesting State has to be a party to the ECHR. s21(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. See also, s87. Discussed below in Chapter 5. NB. Refusing extradition on human rights grounds is much more damaging to inter-State relations than deeming the offence to be of a political character. See Poncet and Gully-Hart, ‘Extradition: The European Approach’, in BASSIOUNI, INTERNATIONAL CRIMINAL LAW, vol. II, 1998.

142

Chapter 4

2. International Human Rights Law in Extradition Hearings Before examining the various restrictions on return, it is worth noting that while it should always be possible to plead protections speciﬁc to extradition treaties, international human rights law may not be directly arguable in domestic courts. It depends on whether or not the State requires treaties to be implemented at the domestic level before they are treated as applicable in the national courts. Equally, it will be necessary to discover whether the State allows for individual petition to any treaty body before the transnational fugitive offender can seek protection at the regional or international level. Whether international human rights law obligations are part of domestic law or not, the applicant will ordinarily have to show that s/he has exhausted domestic remedies before any application can be made to the treaty body. In terms of human rights in relation to the extradition hearing, the ﬁrst question is whether the fair trial provisions apply to that hearing. The speciﬁc wording of Article 6 of the ECHR has restricted its applicability. 6(1) In the determination of his civil rights and public obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . . (2) Everyone charged with a criminal offence has the following minimum rights. . . . (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him.” (emphasis added)

An extradition hearing relates neither to a civil right nor, apparently, to a criminal charge. In the 1976 case of M v Federal Prosecutor,20 the Dutch Supreme Court held that the Article 6 requirement that a person be presumed innocent until proven guilty did not apply to extradition hearings where all that was necessary was a suspicion of guilt. As stated previously, the guilt or innocence of the fugitive is irrelevant in an extradition hearing. The former European Commission of Human Rights dealt with the issue on several occasions. In App. 10227/82 v Spain,21 the applicant contested the fairness of his extradition hearing under Article 6(1)’s general provisions. The Commission, declaring the application inadmissible, questioned whether an extradition hearing was a “determination . . . of a criminal charge”. The Commission’s view was that “determination” in Article 6 required a ﬁnding of guilt or innocence, not just extraditability. Thus, it seemed extradition hearings were not open to review under Article 6(1). However, in a later case, again

20 21

8 NETH.Yb.INT’L L 275 (1977); 74 INT’L L REP.293. (1984), 6 EHRR 581 at 582–83.

Restrictions on Return

143

involving Spain, App. 10292/83,22 while the Commission was not prepared to accept that extradition hearings were open to such review, it stated obiter that on the facts of that case no violation of Article 6 was disclosed. This approach seemed to herald a return to the vague comments of the Commission in App. 9742/82 v Ireland,23 where a fugitive broke his bail to avoid extradition. The Commission recognises that occasions may arise where an alleged violation of the rights and freedoms guaranteed by the Convention may excuse an applicant from compliance with the operation of the rule of law.

It was argued that this declaration tacitly accepted that an extradition hearing may violate Article 6. Later, though, the value of this dictum was again opened to doubt, for in App. 10479/83 v United Kingdom,24 the Commission once more stated Article 6 did not apply to extradition hearings because there was no ﬁnal determination of guilt or innocence; in so doing, the Commission ignored App. 9742/82 which had been argued before them.25 In Aylor,26 the Commission again reiterated that its longstanding case-law was to the effect that an extradition hearing did not concern the merits of criminal charges. The matter came before the Grand Chamber of the European Court of Human Rights in Mamatkulov27 in 2005 and it laid down that Article 6 of the ECHR did not apply to extradition hearings. 82. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 §1 of the Convention. . . . 83. Consequently, Article 6 §1 is not applicable in the instant case.

On the other hand, the wording of Article 14 of the ICCPR is different.28 In Piscioneri v Spain,29 the Human Rights Committee decided the applicant had not exhausted domestic remedies, but did not reject the possibility that extradition

22 23 24 25 26 27

28

29

(1984), 6 EHRR 146. (1983), 5 EHRR 594. (1984), 6 EHRR 373 at 386. Supra n24, at 378. Infra n53, at 694–95. Mamatkulov and Askarov v Turkey, App. 46827/99 and 46951/99, European Court of Human Rights, First Section, 6 February 2003, Grand Chamber, 4 February 2005. Article 14 ICCPR 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Communication No. 956/2000, U.N. Doc. CCPR/C/78/D/956/2000 (2003).

144

Chapter 4

hearings were subject to some fair trial requirements. In Everett v Spain,30 the Committee expressly held that extradition hearings were within parts of Article 14. 6.4 Recalling its earlier case law the Committee considers that although the Covenant does not require that extradition procedures be judicial in nature, extradition as such does not fall outside the protection of the Covenant. On the contrary, several provisions . . . are necessarily applicable in relation to extradition. Particularly, in cases where, as in the current one, the judiciary is involved in deciding about extradition, it must respect the principles of impartiality, fairness and equality, as enshrined in article 14, paragraph 1, and also reﬂected in article 13 of the Covenant. Nevertheless, the Committee considers that even when decided by a court the consideration of an extradition request does not amount to the determination of a criminal charge in the meaning of article 14. Consequently, those of the author’s claims that relate to speciﬁc provisions in paragraphs 2 and 3 of article 14, are incompatible ratione materiae with the provisions in question and hence inadmissible pursuant to article 3 of the Optional Protocol. As to the remaining claim presented under article 14, namely that there was a violation of impartiality, the Committee considers that the author has not substantiated for purposes of admissibility, this part of his communication which is accordingly inadmissible pursuant to article 2 of the Optional Protocol irrespective of whether it is addressed under article 13 or 14 of the Covenant.

The case of Sholam Weiss v Austria31 provides further authority for the applicability of Article 14 ICCPR to extradition hearings. The applicant had been unable to appeal a decision of the lower court when it was open to the prosecutor and he was then extradited despite a stay on extradition granted by the Austrian Administrative Court. The Committee considers that the author’s extradition in breach of a stay issued by the Administrative Court and his inability to appeal an adverse decision of the Upper Regional Court, while the Prosecutor was so able, amount to a violation of the author’s right under article 14, paragraph 1, to equality before the courts, taken together with the right to an effective and enforceable remedy under article 2, paragraph 3, of the Covenant.

The right to a fair trial as set out in the ECHR and ICCPR is drafted differently and, as such, there is a clear difference in the way extradition hearings are treated under the two systems. On another point, if extradition has been granted, but the transnational fugitive offender is challenging the decision to surrender before a treaty body, then s/he will

30 31

Communication No. 961/2000,U.N. Doc. CCPR/C/81/D/961/2000 (2004). Communication No. 1086/2002, U.N. Doc. CCPR/C/77/D/1086/2002 (2002). See also, Alzery v Sweden, CCPR/WG/86/DR/1416/2005, 29 July 2005, where the HRC declared admissible a case where the applicant was expelled on national security grounds to Egypt immediately after an unreviewable executive decision.

Restrictions on Return

145

want to ensure that the extradition does not take place until after the human rights hearing. It may take years to deal with applications to a treaty body. This is a problem in all cases, but with extradition, and also deportation, it assumes an even greater signiﬁcance, for the requested State usually wishes to be rid of the fugitive very quickly in order to honour its international obligations or to remove an unwelcome visitor. In this regard, the Strasbourg organs, the European Court and the former European Commission of Human Rights, have substantial experience of seeking interim measures for the fugitive under the Rule 39 procedure.32 Rule 39.1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.

If the Court issues a request for interim measures in such cases, the fugitive should not be surrendered until after the Court has determined whether her/his rendition would lead to the requested State violating the ECHR. In Cruz Varas v Sweden,33 the former European Commission of Human Rights held that deporting the applicant while his case was pending violated what would now be Article 34 (formerly Article 25) and the obligation not to effectively hinder applications.34 That being said, interim measures ordered by the Commission were not considered to be binding on the States to which they were indicated. However, in Mamatkulov v Turkey,35 the Grand Chamber of the European Court of Human Rights was dealing with a case where Rule 39 indications had been given by the Court to Turkey, although the applicants had nevertheless been extradited to Uzbekistan. The Court

32

33 34 35

Rules of Court, March 2005. Previously Rule 36. See generally, O’Boyle Practice and Procedure under the European Convention on Human Rights, 20 SANTA CLARA L REV.697 at pp. 706–07 (1980). See also, Rules 25 and 74 of the Rules of Procedure of the Inter-American Commission of Human Rights (Precautionary and Provisional Measures, respectively) and Rule 25 of the Rules of Procedure of the Inter-American Court of Human Rights (Provisional Measures). Rule 92 of the Rules of Procedure of the Human Rights Committee is to similar effect: The Committee may, prior to forwarding its Views on the communication to the State party concerned, inform that State of its Views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its Views on interim measures does not imply a determination on the merits of the communication. Series A, Vol. 201 at paragraphs 99 et seq. (1991). Not upheld on the facts by the European Court of Human Rights. Mamatkulov and Askarov v Turkey, App. 46827/99 and 46951/99, European Court of Human Rights, First Section, 6 February 2003, Grand Chamber, 4 February 2005.

146

Chapter 4

found that it did not have sufﬁcient evidence to decide whether there had been a breach of Articles 3 and 6 by Turkey. On the other hand, it held that ignoring the indications under Rule 39 hindered the applicants’ application to the European Court of Human Rights and that, thus, Turkey was in breach of Article 34.36 Moreover, it went on to hold, having regard to the jurisprudence of other international tribunals,37 interim measures must effectively be binding on States: 128. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention. 129. Having regard to the material before it, the Court concludes that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.38

Under the ICCPR, the Committee “may . . . inform the State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation”.39 It can do so even before any decision on the admissibility of the communication. Furthermore, the Human Rights Committee has found an implicit obligation within the ICCPR not to hinder communications.40 In Piangdiong et al. v The Philippines,41 the Committee held that a State’s failure to respect interim measures breached its obligations under the Optional Protocol. 5.1 By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State’s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (Article 5 (1), (4)). ...

36

37 38

39

40 41

Paragraphs 92 et seq. ECHR, Article 34: The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. See paragraph 124. See also, Affaire Chamaïev et 12 autres c. Géorgie et Russie, App. 26378/02, 12 April 2005, at paragraphs 469–79. Summary Record, 17 pr.25. Cited in McGOLDRICK, THE HUMAN RIGHTS COMMITTEE, p. 131 (1994). Antonaccio v Uruguay, Doc. A/37/40 p. 114. Communication No. 869/1999, U.N. Doc. CCPR/C/70/D/869/1999 (2000). See also, Ashby v Trinidad and Tobago, Communication No. 580/1994, U.N. Doc. CCPR/C/74/D/580/1994 (2002).

Restrictions on Return

147

5.4 Interim measures pursuant to rule [92] of the Committee’s rules adopted in conformity with article 39 of the Covenant, are essential to the Committee’s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.

Therefore, the present understanding would be that failure to respect interim measures prevents the relevant treaty body from deciding on the merits, thereby leaving the surrendering State in breach of its human rights obligations. As such, interim measures are effectively binding on the State.

3. Capital Punishment and Physical Integrity The death penalty is not contrary to international human rights law. It may be that there is regional custom in Europe that prohibits capital punishment,42 but elsewhere it is not a violation of human rights to impose the death penalty for serious crimes subject to some speciﬁc safeguards.43 Nevertheless, many extradition treaties now contain a clause prohibiting surrender if the transnational fugitive offender might face the death penalty in the requesting State where that would not be possible in the requested State. The typical clause in treaties is found in Article 11 of the European Convention on Extradition.44

42

43

44

See Protocol 13 to the ECHR, ETS 187, in force, 7 January 2003. NB. See also, paragraph 13 of the Preamble to the European Arrest Warrant – OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). See, for example, the ICCPR and its Second Additional Protocol. Article 6 ICCPR 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a ﬁnal judgement rendered by a competent court. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty, G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49 (1989), entered into force July 11, 1991. Article 2 1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratiﬁcation or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. ETS 24 (1957).

148

Chapter 4 If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufﬁcient that the death penalty will not be carried out.

In the 1978 case of Viaux-Peccate v The State of the Netherlands,45 the court held that this principle was not a rule of customary international law. A year later in 1979, the Constitutional Court of Italy, in the case of Re Cuillier, Ciamborrani and Vallon,46 overruled the Italian appellate court’s judgment which had decided that there was a generally recognised rule of law that a person would not be extradited to face the death penalty without receiving assurances that it would not be carried out from the requesting state. The Constitutional Court based its decision on the fact that there has to be an express treaty provision to that effect if the fugitive is to be protected, although it might be argued to the contrary that such provisions are merely declaratory of customary international law in nature. In fact, extradition was refused under the Italian Constitution rather than under some nascent principle of international law because the right to life was recognised therein. In C v Federal Police Department,47 the Swiss Federal Tribunal found that the international obligation imposed by an extradition treaty took precedence over the domestic extradition legislation which required assurances vis à vis the death penalty from the requesting State; and, furthermore, there was no superior norm of international public policy overriding the bilateral treaty’s silence on death penalty issues – the Tribunal expressly referred to Article 2 of the ECHR permitting capital punishment.48 Nevertheless, utilising international human rights law obligations outlawing capital punishment in the requested State, either Optional Protocol 2 to the ICCPR or Protocol 649 to the ECHR, domestic courts have more readily demanded diplomatic assurances that the death penalty will not be carried out before agreeing to extradition. In CDS v The Netherlands,50 the Dutch Supreme Court held that under Articles 1 and 6 of Protocol 6, the Dutch Government was bound under the ECHR to refrain from Acts which could “result in someone within the jurisdiction being exposed to the death penalty, even if the penalty is imposed or carried out elsewhere”.51 Despite the fact that the Dutch government was also bound in international law to hand the accused over, his right not to be exposed to the death

45 46 47 48 49 50 51

District Court of The Hague, 74 INT’L L REP.456 at 457 (1978). 78 INT’L L REP.93. 100 INT’L L REP.657 (1987). Supra n47, at 659–60. ETS 114, in force 1 March 1985. 96 INT’L L REP.383 (1990). Supra n50, at 387.

Restrictions on Return

149

penalty arising out of the obligations under Protocol 6 took precedence.52 In Fidan,53 the French Conseil d’Etat had to consider the issue in relation to a request by Turkey for the fugitive for murder and attempted murder. Taking into account the sixth Protocol, the court held that given that France abolished the death penalty in 1981, it would be contrary to French ordre public to extradite Fidan since any guarantees given by the Turkish government under the typical treaty clause would not be binding on the independent courts. The use of diplomatic assurances to safeguard the fugitive’s rights in general is discussed below, but the interplay of extradition law and international human rights law in domestic courts is apparent. The Strasbourg organs of the ECHR had equally been addressing extradition to face the death penalty and had developed a parallel route to protection. Articles 2 and 3 of the ECHR, the right to life and freedom from torture, inhuman or degrading treatment or punishment,54 have been raised vis à vis extradition hearings, inter alia, where the fugitive might face the death penalty in the requesting State.55 Article 3 on its own is, indeed, the most usual ground on which to try and impugn an extradition request in Strasbourg. As an example of the problem under consideration, in the case of Amekrane,56 the United Kingdom paid the widow of the person returned £37,500 by way of a friendly settlement without admitting liability. In that case, the person returned had been executed having been handed over from Gibraltar to the Moroccan authorities without any formal surrender proceedings being held. The case was not considered by the former Commission or Court on its merits because a friendly settlement was reached; the British government could have decided to offer the friendly settlement because of the irregular nature of the surrender or because of the treatment he received in Morocco following that surrender. However, while Amekrane did not set any ﬁrm precedents for extradition cases, it did reveal that arguments concerning the requested State’s responsibilities vis à vis the enjoyment of Convention guarantees in the requesting State would not necessarily be manifestly ill-founded. Subsequently, some cases touched on the scope of Article 3 in relation to extradition requests and set out what level of proof would be required of the fugitive if the claim is to be substantiated. According to Drzemczewski as early as 1983, 52 53

54

55

56

Supra n50, at 388. 100 INT’L L REP.662 (1987); Errera, [1987] PUB.LAW 286. See also, Aylor, Conseil d’Etat, 1993, 100 INT’L L REP.664 at 689–90. NB. Article 3 ECHR does not require that the fugitive fear torture, degrading treatment or punishment might sufﬁce – an extradition to Spain under the EAW has been challenged because alleged terrorists can be held for ﬁve days before being brought before a judge, the implication being that a violation of Article 3 might occur unchecked in that period – The Guardian p. 5, 16 AUG 2005. NB. Article 2 permits the death penalty, but Protocols 6 and 13 between them encourage member States to outlaw it in all circumstances. App. 5961/72, 16 Yb.ECHR 356 (1973); see also The Times, editorial, 14 AUG 1974. DRZEMCZEWSKI, supra n3, pp. 12–14.

150

Chapter 4 when examining the facts, the Commission must determine that there are substantial grounds to fear that the person might be subjected to ‘torture or to inhuman or degrading treatment or punishment’ contrary to Article 3 in the State to which he is being sent and that there are serious grounds for fearing that such treatment will actually be inﬂicted upon him.57

Strong evidence from the applicant is necessary, therefore, if Strasbourg is to accept there would be a violation if he were to be expelled. Nevertheless, the Commission ﬁnds that from the letters and documents submitted it cannot be concluded that there was a serious fear of treatment contrary to Article 3 when the applicant was deported to Yugoslavia. It follows that this part of the application is manifestly ill-founded within the meaning of Article [35].58

Given that, prima facie, such evidence exists concerning the requesting State, however, it does not necessarily mean that the requested State cannot extradite the fugitive without violating the ECHR. A series of cases have considered the scope of the protection offered in Article 3 in relation to extradition requests, usually where the requesting State was not a member of the Council of Europe. German experience highlights problems created when another High Contracting Party requests a fugitive’s return. Within the Council of Europe, there should be no problems with respect to human rights violations when extraditing to a fellow member. The Council has even gone so far as to promulgate the European Convention on the Suppression of Terrorism59 to make it easier to allow for the extradition among the member States of that most sensitive group of fugitives, the political offender.60 However, certain Council of Europe States used not to grant to individuals the right to petition the former Commission and thus individual violations could not be easily questioned – with the coming into force of Protocol 1161 to the ECHR, Article 34 of the ECHR now confers an automatic right to individual petition to the newly constituted Court. The former situation, however, used to be the case with Turkey. In Altun v Federal Republic of Germany,62 where Turkey had requested Altun’s return for interfering with evidence and harbouring criminals, both, in fact, non-

57 58

59 60

61 62

Supra n3, at p. 10. App. 10032/82 v Sweden, (1984) 6 EHRR 555 at 557. According to the facts, the applicant was sentenced to six years imprisonment for offences against “the State and the people” in the former Yugoslavia (at 556). (Emphasis added). Hereinafter, ECST; ETS 90 (1977). As for its success, though, see Warbrick, The ECHR and the Prevention of Terrorism, 32 INT’L & COMP.LQ 82 at p. 119 (1983); Gilbert, The “Law” and “Transnational Terrorism”, 26 NETH.Yb.INT’L L 3 (1995). ETS 155, in force 1 November 1998. (1983), 5 EHRR 611. See also App. 10292/83 v Spain, 6 EHRR 146 (1984), where the applicant was to be returned to the United States.

Restrictions on Return

151

capital offences,63 the Commission again did not have an opportunity to decide on the merits of the Article 3 claim because the applicant committed suicide before the hearing. Yet, it is apparent from the admissibility application that even the extradition of a fugitive to another High Contracting Party might, in certain circumstances, violate Article 3. Nevertheless, if there are reasons to fear that extradition, although requested exclusively for common crimes, has been sought in order to proceed against the individual, in violation of the principle of specialty, for political offences or even for just his political views, then the Commission cannot altogether set aside the possibility of a violation of Art. 3 of the Convention.64

While the statement is welcome, it is a little difﬁcult to understand how requesting a fugitive in breach of the principle of specialty or the political offence exemption would, on its own, constitute torture or inhuman and degrading treatment. Article 3 is designed to guarantee that a person is not subjected to torture or inhuman and degrading treatment. With respect to extradition law, it ought to provide a safeguard against surrender where the fugitive might suffer such treatment in the requesting State. States party to the ECHR owe an obligation to all persons within their jurisdiction to protect them from violations of Article 3, even if that violation will be carried out by the requesting State. It is hard to see how a potential violation of the political offence exemption would amount to torture or inhuman and degrading treatment. Nevertheless, the statement that Article 3 would prevent extradition in such circumstances marked a great leap forward in the jurisprudence of the former Commission and Court.65 The ﬁrst opportunity the former Commission or Court had to consider Article 3 in the course of an extradition request with respect to the death penalty in the requesting State, arose in the Kirkwood case.66 The Strasbourg decision on the admissibility of the application deals with the California death row phenomenon, rather than with procedure in extradition cases per se. Article 4 of the then AngloUS Extradition Treaty67 provided as follows: If the offence for which extradition is requested is punishable by death under the relevant law of the requesting party, but the relevant law of the requested party does not provide for the death penalty in a similar case, extradition may be refused unless the

63

64

65

66 67

Supra n62, at 614. And see the merits hearing, (1985), 7 EHRR 154 at 158. See also App. 10940/86 v France (1986), 8 EHRR 226. Supra n62, at 613. Cf. Even so, the former Commission was prepared to remove its Rule [39] indications on 15 July 1983. Kemal Altun was posthumously granted asylum by a former West Berlin Court in February 1984, The Guardian, p. 6, 17 FEB 1984. App. 10479/83, 6 EHRR 373. At that time, only UKTS 16 (1977), Cmnd 6723. See now, Chapter 2 above on the 2003 treaty.

152

Chapter 4 requesting party gives assurances satisfactory to the requested party that the death penalty will not be carried out.

The British Home Secretary had obtained an assurance from the Deputy AttorneyGeneral of California that if the death penalty were imposed, then the wish of the United Kingdom that it not be carried out would be put before the Governor.68 Kirkwood argued that regardless of this assurance he might still spend many years on death row, which was in itself inhuman and degrading.69 The former Commission’s decision examined the likelihood of this coming to pass and whether it contravened the Convention. It noted the absolute bar on derogating from Article 3, but the permission in Article 2 to use the death penalty for crimes for which that penalty is prescribed by law. It held that the death row phenomenon was troublesome having regard to Article 3, but that the delays were designed to protect life and prevent arbitrariness. On that basis, since Kirkwood had not as yet even been convicted, the Commission held that the risk of him suffering the death row phenomenon was not serious enough to constitute a violation of Article 3.70 In looking at the treatment the fugitive would encounter in the requesting State, however, the Commission went beyond what a domestic court in a common law State will usually take into account; the so-called rule of non-inquiry prevents the courts of the requested State from investigating the motives or likely behaviour of the requesting State.71 The decision also conﬁrmed the universal applicability of Article 3 because the United States, as the requesting State, can rightly claim to provide guarantees in its Bill of Rights which are at least the equivalent of those in the ECHR. Despite this fact, the possibility of a violation in the United States was not easily discounted by the Commission. The Court ﬁrst had cause to consider the scope of Articles 2 and 3 with respect to extradition in the 1989 Soering case.72 Soering was charged with murder in Virginia for which he faced the death penalty. His arguments against extradition were the same as those in Kirkwood; that the death row phenomenon constituted

68 69 70 71

72

Supra n66, at 374. Supra n66, at 376–77. Supra n66, at 385–86. In re Arton (No 1), [1896] 1 QB 108 at 114. The motive and conduct of the requesting state is never questioned: the political offence exemption should look only at the offence. Cf. Continental practice which would always have regard to the proceedings in the requesting state; Vogler, Scope, supra n9, at p. 664. The former Anglo-U.S. Supplementary Extradition Treaty (Cm.294, UKTS 6 (1988) and, with comments, in Appendix 1 to the U.S. Senate EXEC.REPT 99–17, accompanying TR.DOC.99-8 – ratiﬁed on 23 December 1986) permitted inquiry in limited circumstances in Article 3 thereof. See In re Extradition of Howard 996 F.2d 1320 (1993): and, In the Matter of the Requested Extradition of Smyth 61 F.3d 711 (1995); rehearing denied, 72 F.3d 1433 (1996) – see also, 795 F.Supp. 973 (1992), 820 F.Supp. 498 (1993), 826 F.Supp. 316 (1993), 863 F.Supp.1137 (1994). See now, however, the Anglo-U.S. Extradition Treaty of 2003 (Cm.5821, 2003). The Soering Case, Series A, Vol. 161. See Quigley and Shank, Death Row Phenomenon as a Violation of Human Rights. Is it Legal to Extradite to Virginia?, 30 VA.J INT’L L 241 (1990).

Restrictions on Return

153

inhuman or degrading treatment because at that time the United Kingdom had not ratiﬁed Protocol 6 and Article 2 permits the death penalty. However, his case was complicated by the fact that, in the ﬁrst place, he was a German national and the government of the then F.R.G. had declared itself willing to prosecute him for the crime and that, secondly, he was suffering from delusions at the time of the crime.73 The Court unanimously upheld Soering’s claim that his extradition to face an uncertain future on death row constituted inhuman or degrading treatment under Article 3. De Meyer J went further and held that if the crime would not attract the death penalty in the requested State, then it was a breach of Article 2 to extradite him to a State where he might be executed.74 This minority opinion was not supported by any of the other judges and could not be viewed as setting any precedent. However, with the growing disapproval of the death penalty in Europe, as evidenced by Protocols 6 and 13, it cannot be doubted that De Meyer J’s view was prescient. At that time, if the requested State had ratiﬁed Protocol 6, then the European Commission of Human Rights would not exclude the possibility that the responsibility of a Contracting State could be engaged under Article 1 of Protocol No. 6 if a fugitive [were to be] extradited to a State where he runs a serious risk of being condemned to death or executed.75

With respect to Article 3 of the ECHR, though, the Court recognised that the Convention was limited to Council of Europe member States76 and that it did not make any reference to extradition. Moreover, according to the Court, the risk of the violation alleged by Soering was only potential until he had faced trial in Virginia. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest

73

74

75 76

Cf. Gubbay CJ (Zim. S.Ct) held that Soering’s age and mental condition were irrelevant and that everything turned on the death row phenomenon – Catholic Commission for Justice and Peace in Zimbabwe v A-G et al., 14 HRLJ 323 at 333 (1993), relying on paragraph 106 of Soering, supra n72. Mexico used to refuse extradition where there was the possibility of life imprisonment with no chance of parole. The Mexican Supreme Court struck the ban down on constitutional grounds – BBC News website, 4483746.stm, 2005/11/30 03:47:00. Aylor v France 100 INT’L L REP.690 at 692. Interestingly, because the United Nations when establishing its transitional administration in Kosovo included the ECHR as one of the foundation human rights instruments, domestic courts apply the Convention, and have done since before Serbia and Montenegro ratiﬁed, even though the UN cannot technically be bound by this regional human rights instrument. See the unreported decision of the Gjilan District Court (PHH Nr 2/2001) to refuse a request from Rwanda for a UN worker due to concerns about the violation of his human rights if he were to be surrendered.

154

Chapter 4 of all nations that suspected offenders who ﬂee abroad should be brought to justice. Conversely, the establishment of safe-havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. . . .

Nevertheless, the Court went on to ﬁnd in favour of Soering. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the requesting country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is the liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.77

Soering built on the already well-established, if previously untested, principles relating to extradition and Article 3. The Court decided that in future the requested State must have regard to potential violations of ECHR guarantees by the authorities in the requesting State, regardless of whether the latter is a party to the ECHR.78 In the subsequent case of Chahal,79 the European Court of Human Rights held in relation to an asylum case, where the applicant feared he would be tortured for his political views if deported to India, that the United Kingdom would violate Article 3 if he were to be returned. 77

78

79

Supra n72, paragraphs 89 and 91; emphasis added. Nevertheless, the United Kingdom reached an agreement with the Virginian authorities, via the federal government with which the treaty has been concluded, that Soering would only be charged with non-capital offences and his extradition was then granted. The British government argued that the extent of the Court’s decision was to prohibit his return to spend time on death row. The Guardian p. 24, 2 AUG 1989. Domestic cases have followed suit – see The Guardian p. 18, 31 MAR 2001; p. 15, 29 JUN 2001; p. 16, 20 JUL 2001; p. 17, 1 OCT 2002. On diplomatic assurances more generally, see below. An interesting variation on this theme was seen in the case of Saddam Hussein. Following his capture in Iraq, he was detained by the United States forces on behalf of the Coalition Provisional Authority prior to his handover to the Iraqi interim government. The interim government maintained the death penalty. The issue was whether the United Kingdom, as a member of the CPA, was liable under the ECHR for handing him over without obtaining assurances. His application for interim measures on 29 June 2004 was rejected by the European Court of Human Rights – Press Release 337, 30 JUN 2004. See also the potential problem for United Kingdom troops in Afghanistan where the domestic death penalty might be problematic for any transfer – The Guardian p. 12, 29 DEC 2001. (70/1995/576/662), 15 November 1996, paragraphs 80 and 81 (emphasis added).

Restrictions on Return

155

80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. . . . In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above). 81. . . . It should not be inferred from the Court’s remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of [Soering], that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged.

Thus, an applicant can seek the assistance of Strasbourg to prevent extradition where there are substantial grounds for believing that the transnational fugitive offender faced a real risk that he would be subject to treatment contrary to Article 3 of the ECHR if surrendered.80 And it is no defence for the respondent State to question the conduct and activities of the transnational fugitive offender.81 The Convention Against Torture82 forbids States Party from “extraditing a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture”. Reports from the Committee Against Torture and the European Committee for the Prevention of Torture were cited in the successful attempt to block extradition to Russia of the Chechen leader, Akhmed Zakaev.83 Torture under Article 1 of CAT does not include, however, “pain and suffering84 arising only from, inherent in or incidental to lawful sanctions”.85 Whether the mental suffering consequent on spending time on death row would qualify as torture so as to prevent extradition is, therefore, unanswered so far.

80

81

82

83

84 85

In Kozlov v Finland, App.16832/90, European Commission of Human Rights, 28 May 1991, the application was declared inadmissible because the potential treatment in Russia would not be serious enough to invoke Article 3. See also, the case of Ramzy v The Netherlands, referred to in The Guardian p. 11, 3 OCT 2005. See Redress, Terrorism, Counterterrorism and Torture: International Law in the Fight against Terrorism, July 2004. See also, Amnesty International report on the war on terror (The Guardian p. 17, 27 MAY 2004); rejection of extradition by European Union member States to the United States of persons connected with the events of September 11th 2001 if the death penalty might be imposed (The Guardian p. 16, 14 SEP 2002). One of the concerns with respect to a person requested by the United States for allegedly supporting terrorism on the internet is that he might face the death penalty – The Guardian p. 7, 18 MAY 2005; BBC News website 4554829.stm, 2005/05/17 13:05:04. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 23 INT.LEG.MAT.1027 (1984) & 24 INT.LEG.MAT.535 (1985) – Article 3. See Bofaxe 286E, The judgement on the extradition of Zakaev to Russia, 21 January 2004. Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum. Whether mental or physical. Article 1.1.

156

Chapter 4

The Human Rights Committee86 has had to deal with the question of whether extradition to face the death penalty would render the requested State in violation of its obligations under the ICCPR. It has also dealt with the question of whether the death row phenomenon in and of itself is in breach of the ICCPR.87 In Kindler v Canada,88 the author of the communication was requested by the U.S.A. for extradition with respect to a homicide for which he could be sentenced to the death penalty in Pennsylvania. The Human Rights Committee found that extradition could lead to a violation of the ICCPR if the transnational fugitive offender’s rights were to be at real risk in the requesting State.89 However, according to the majority opinion in Kindler, extradition to face the death penalty was not a violation of the Covenant,90 even from a State such as Canada that had abolished the death penalty. Furthermore, the period of time spent awaiting execution would not on its own amount to a violation of Articles 7 and 10 ICCPR.91 Nevertheless, the Human Rights Committee has found that certain elements of the death penalty and the death row phenomenon can give rise to a violation of the ICCPR. On the other hand, each case must be considered on its own merits, bearing in mind the imputability of delays in the administration of justice on the State party, the speciﬁc conditions of imprisonment in the particular penitentiary and their psychological impact on the person concerned.92

86

87

88 89 90 91

92

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inﬂicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inﬂicted by or at the instigation of or with the consent or acquiescence of a public ofﬁcial or other person acting in an ofﬁcial capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. See generally, Schmidt, Universality of Human Rights and the Death Penalty – the Approach of the Human Rights Committee, 3 ILSA J.INT’L & COMP.L 477 esp. pp. 481 et seq. (1997); Cerna, Universality of Human Rights: The Case of the Death Penalty, 3 ILSA J.INT’L & COMP.L 465 (1997). The ICCPR does not treat the death penalty as a violation of the right to life. However, Article 6.2 presupposes that there will be a progressive abolition and that it shall only be imposed for the most serious crimes where it continues – the death penalty shall not be imposed for crimes committed before the accused was eighteen and shall not be carried out on pregnant women (Article 6.5). Supra n16. Supra n16, paragraph 13.2. Supra n16, paragraph 14.6. Johnson v Jamaica, Doc. CCPR/C/56/D/588/1994 paragraphs 8.2–8.5 (1996); Chaplin v Jamaica Doc. CCPR/C/55/D/596/1994 (1995), paragraph 8.1. Cf. Judicial Committee of the Privy Council, Pratt and Morgan v Attorney-General of Jamaica [1993] 4 All ER 769. Francis v Jamaica, Doc. CCPR/C/54/D/606/1994 at paragraph 9.1 (1995).

Restrictions on Return

157

In Wright v Jamaica,93 the Committee held that The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant. As the Committee noted in its General Comment 6(16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that ‘the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review of conviction and sentence by a higher tribunal.’ In the present case, since the ﬁnal sentence of death was passed without legal representation for Mr. Wright at the preliminary hearing, without due respect for the requirement that an accused be tried without undue delay, and without effective representation for Mr. Harvey on appeal, there has consequently also been a violation of Article 6 of the Covenant.”

In Ng v Canada,94 the Committee held that death by cyanide gas asphyxiation, since it may cause prolonged suffering and agony and might take up to ten minutes, violated Article 7 ICCPR. It relied on its General Comment on Article 7,95 asserting that “when imposing capital punishment, the execution of the sentence ‘. . . must be carried out in such a way as to cause the least possible physical and mental suffering’”. As such, Canada was in breach of the ICCPR for not seeking sufﬁcient assurances from the United States that the death penalty in that form would not be carried out if imposed at trial. However, the HRC took a more robust stance in Judge v Canada.96 The Committee recognised in paragraph 10.3 that its own jurisprudence on the right to life in extradition cases was ten years old, that there had been legal developments since then and that the ICCPR should be interpreted as a living instrument. It went on to hold that: paragraphs 2 to 6 [of Article 6] have the dual function of creating an exception to the right to life in respect of the death penalty and laying down limits on the scope of that exception. Only the death penalty pronounced when certain elements are present can beneﬁt from the exception. Among these limitations are that found in the opening words of paragraph 2, namely, that only States parties that ‘have not abolished the death penalty’ can avail themselves of the exceptions created in paragraphs 2 to 6. For countries that have abolished the death penalty, there is an obligation not to expose a

93 94 95 96

Doc. CCPR/C/55/D/459/1991 paragraph 10.6 (1995). Doc. CCPR/C/49/D/469/1991 at paragraphs 16.2–16.4 (1994). CCPR/C/21/Add.3, paragraph 6. Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003).

158

Chapter 4 person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.

Given that Canada had abolished the death penalty: irrespective of whether it has not yet ratiﬁed the Second Optional Protocol to the Covenant Aiming at the Abolition of the Death Penalty,97 violated the author’s right to life under article 6, paragraph 1, by deporting him to the United States, where he is under sentence of death, without ensuring that the death penalty would not be carried out. The Committee recognizes that Canada did not itself impose the death penalty on the author. But by deporting him to a country where he was under sentence of death, Canada established the crucial link in the causal chain that would make possible the execution of the author.

Shortly after the Judge case, the Human Rights Committee issued General Comment 31 relating to the general legal obligation of States under Article 2.98 Paragraph 12 thereof provides as follows: 12. Moreover, the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters.

Thus, the Human Rights Committee treats each case on its facts, but is prepared to interfere in extradition cases where the death penalty, torture or cruel, inhuman or degrading treatment or punishment might be imposed upon surrender. However, as noted above, obtaining a judgment from the European Court of Human Rights or the Human Rights Committee can be a long drawn out process. While domestic courts will also draw on extradition laws that seek to protect transnational fugitive offenders, there is now a substantial body of case law from various jurisdictions dealing with extradition requests where the domestic court takes account of the State’s obligations under its international human rights commitments. Since the 97

98

Author’s note. For cases where the State is party to the Second Additional Protocol, see A. R. J. v Australia, Communication No. 692/1996 (6 February 1996), CCPR/C/60/D/692/1996 and Mrs. G. T. v Australia, Communication No. 706/1996, U.N. Doc. CCPR/C/61/D/706/1996 (4 November 1997). Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

Restrictions on Return

159

cases tend to mix the protections found in the extradition and human rights treaties, it is important to focus on the attitude of the courts to ensuring that the death penalty or other infringements of the fugitive’s physical integrity are not carried out after surrender. Several cases have referred to assurances from the requesting State and it is necessary to examine their content and implementation. Assurances from the requesting State, sometimes known as diplomatic assurances, are used in an attempt to guarantee that the fugitive’s rights will not be infringed.99 In theory, given that they are provided by a competent authority in the requesting State,100 they satisfy the need to ensure that rendition does not leave the requested State in breach of its international human rights law or extradition treaty obligations.101 In United States v Burns,102 the Supreme Court of Canada, relying predominantly on the Canadian Charter, held that while “the government objective of advancing mutual assistance in the ﬁght against crime is entirely legitimate, the Minister has not shown that extraditing the respondents to face the death penalty without assurances is necessary to achieve that objective”. In the South African Constitutional Court case of Mohamed v President of the RSA,103 it was held that even if the person is consenting to his surrender to a State where the death penalty might be imposed, there was still a constitutional obligation on South Africa to obtain assurances. 63. An indispensable component of such consent would be awareness on the part of Mohamed that he could not lawfully be delivered by the South African authorities to the United States without obtaining an undertaking as a condition to such delivery that if convicted the death sentence would not be imposed on him or, if imposed, would not be carried out. Clearly this duty on the part of the South African government was important to Mohamed; and, inevitably, any consent given by him in ignorance of that duty and of the literally vital protection it afforded him, was inchoate.104

99

100

101

102 103 104

I am grateful to my students on the LL.M. in International Human Rights Law (2004–05) at the University of Essex, Fumiko Itagaki and Adil Abilov, for the helpful discussions we had on this topic. In federal States, the source of the assurance can be problematic. In Re Lane Case No. 2266 106 INT’L L REP.305, the Italian Court of Cassation held that an assurance from the Illinois State Attorney and the United States Ambassador would sufﬁce, but that it was not sufﬁcient to leave it to the executive authorities. In the later case of Re Hawkins 106 INT’L L REP.310 at 314, the Italian Court of Cassation accepted an assurance from the United States federal authorities, even though any death penalty would be imposed by Californian courts. Although assurances are not necessarily so limited – the United States surrendered a person to China with minimal guarantees, but which did include a prohibition on imposing the death penalty! The Guardian p. 16, 17 APR 2004. [2001] 1 S.C.R. 283; 2001 SCC 7 at paragraph 134. [2001] BCLR 685 (CC) at paragraphs 60 and 63. The US District Court (SDNY) held in USA v Usama Bin Laden et al. 156 F.Supp 2d 359 at 370 (2001) that Mohamed was entitled to plead the decision of the South African Constitutional Court in mitigation of the possible imposition of the death penalty because his co-defendants had been surrendered on the basis of receiving assurances from the United States government that the death penalty would not be imposed.

160

Chapter 4

In App. 9012/80, X v Switzerland,105 the applicant was an Indian national requested on serious fraud charges by the United Arab Emirates for trial in Dubai. The Swiss extradited him to Dubai before an application had been made to the former Commission, but his representatives took the case, acting on his behalf. Since the fugitive had already been extradited, the ECHR institutions were left to make merely hypothetical decisions. In fact though, the former Commission rejected the application, inter alia, because the Swiss had extracted thirteen guarantees from Dubai concerning the treatment that the applicant would receive on surrender. The guarantees incorporated human rights provisions from the European Extradition Convention, the previous Swiss Extradition Act and the ECHR. As such, the prima facie evidence was rebutted. The question of whether the Commission would have acted if the thirteen requirements had not been negotiated was not answered. The Swiss case of Dharmarajah106 concerned extradition to a State not party to the ECHR and with which Switzerland did not have an extradition arrangement. The Sri Lankan government wanted Switzerland to extradite a Tamil. Having ﬁrst obtained a guarantee that the death penalty would not be imposed, the Swiss then extracted several other guarantees from the Sri Lankans, including a promise to accord to Dharmarajah those rights set out in the ECHR.107 Despite these assurances the Swiss still did not extradite him. Hungary sought assurances from China following an extradition request. After some assurances had been obtained, especially regarding the death penalty, the fugitive applied to the European Court of Human Rights relying on Articles 3 and 6 of the ECHR and Article 1 of Protocol 6 thereto.108 At the admissibility stage, the Court listened to evidence from both sides about the reliability of assurances given by the Chinese government in the past. Shortly after the admissibility hearing, the Hungarian government refused the extradition request leading to the case being struck out at Strasbourg with the consent of the applicant. In Chahal,109 the European Court of Human Rights accepted

105 106

107

108

109

24 D+R 205 (in English at 213). See also DRZEMCZEWSKI, supra n3, at p. 11. See DRZEMCZEWSKI, supra n3, at pp. 32–33. For other examples, see the Report of the 67th Conference of the International Law Association, Helsinki 1996, Committee on Extradition and Human Rights, pp. 214 et seq., esp. pp. 229–31. In the end, Dharmarajah was not surrendered because the Swiss government did not accept the guarantees given by the Sri Lankan government. DRZEMCZEWSKI, supra n3, at p. 33. See also Recommendation 950 (1982), paragraph 9, where Council of Europe member states were exhorted not to conclude extradition treaties with states where there is a chance of unfair trial, or arbitrary judgment, or where torture is practised, unless proper guarantees are obtained – 25 Yb.ECHR (PD) 13 (1982); and see now the European Convention for the Prevention of Torture, 27 INT.LEG. MAT.1152 (1988) and 28 INT.LEG.MAT.1341 (1989). Yang Chun Jin alias Yang Xiaolin v Hungary, App. 58073/00, Second Section, 11 January 2001 – consensually stuck out on 8 March 2001. See also, Bilasi-Ashri v Austria, App. 3314/02 (European Court of Human Rights, Second Section) 26 November 2002. (70/1995/576/662) 15 November 1996, at paragraph 105. I am grateful to my former student Fumiko Itagaki, LL.M. in International Human Rights Law 2004–05, for the discussions we had on the importance of this case in this context.

Restrictions on Return

161

the good faith of the Indian government’s assurances, but having regard to international reports on India, rejected their effectiveness. 105. Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above . . ., it would appear that, despite the efforts of that Government, the [National Human Rights Commission] and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem (see paragraph 104 above). Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.

On the other hand, in Mamatkulov,110 the Grand Chamber of the European Court of Human Rights was prepared to allow extradition to Uzbekistan on the assurance of the Public Prosecutor that the applicants would not suffer torture or capital punishment. This seems to be placing too much reliance on the assurance without investigating its reliability and ensuring its effective implementation. In Jonny Rubin Byahuranga v Denmark,111 the Human Rights Committee held that Denmark needed to respond in detail to the applicant’s speciﬁc claims and not just rely on a general country analysis, indicating that a general assurance would not be sufﬁcient.112 The leading analysis is provided by the Committee Against Torture. In Agiza v Sweden,113 the Committee held as follows:

110

111 112

113

Mamatkulov and Askarov v Turkey, App. 46827/99 and 46951/99, (European Court of Human Rights, Grand Chamber) 4 February 2005, paragraphs 76 et seq. Communication No. 1222/2003, U.N. Doc. CCPR/C/82/D/1222/2003 (2004). See the Memorandum of Understanding between the United Kingdom and Jordan – The Guardian p. 8, 11 AUG 2005. A subsequent agreement with Libya has explicitly barred anyone being returned facing the death penalty, but, like Jordan, it is unclear how the agreement will be monitored. See also, the memorandum of understanding with Lebanon – BBC News website 4556096.stm, 2005/12/23 15:57:34. Agiza v Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003 (2005). This decision marked a change of approach from its earlier decision in Hanan Ahmed Fouad Abd El Khalek Attia v Sweden, Communication No. 199/2002, U.N. Doc. CAT/C/31/D/199/2002 (2003). 13.5 In light of this assessment, the Committee considers it appropriate to observe that its decision in the current case reﬂects a number of facts which were not available to it when it considered the largely analogous complaint of Hanan Attia, where, in particular, it expressed itself satisﬁed with the assurances provided. The Committee’s decision in that case, given that the complainant had not been expelled, took into account the evidence made available to it up to the time the decision in that case was adopted. The Committee observes that it did not have before it the actual report of mistreatment provided by the current complainant to the Ambassador at his ﬁrst visit and not provided to the Committee by the State party (see paragraph 14.10 below); the mistreatment of the complainant by foreign-intelligence agents on the territory of the State party and acquiesced in by the State party’s police; the involvement of a foreign intelligence service in offering and procuring the means of expulsion; the progressively wider discovery of information as to the scope of measures undertaken by numerous States to expose individuals suspected of involvement in terrorism to risks of torture abroad; the breach by Egypt of the element of the assurances relating to guarantee of a fair trial, which goes to the weight that can be attached to the assurances as a whole; and the unwillingness of the Egyptian authorities to

162

Chapter 4 13.4 . . . The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not sufﬁce to protect against this manifest risk.

This active involvement post-surrender has been reﬂected in a Resolution on the Transfer of Persons of the Sub-Commission for the Protection and Promotion of Human Rights.114 4. Conﬁrms that where torture or cruel, inhuman or degrading treatment is widespread or systematic in a particular State, especially where such practice has been determined to exist by a human rights treaty body or a special procedure of the Commission on Human Rights, there is presumption that any person subject to transfer would face a real risk of being subjected to such treatment and recommends that, in such circumstances, the presumption shall not be displaced by any assurance, undertaking or other commitment made by the authorities of the State to which the individual is to be transferred;115 6. Strongly recommends that, in other cases, where the question of a real risk of torture arises in a particular case, no transfer shall be carried out unless: (a) The State authorities effecting the transfer seek and receive credible and effective assurances, undertakings or other binding commitments from the State to which the person is to be transferred that he or she will not be subjected to torture or cruel, inhuman or degrading treatment;116 (b) Provision is made, in writing, for the authorities of the transferring State to be able to make regular visits to the person transferred in his/her normal place of detention, with the possibility of medical examination, and for the visits to include interviews in private during which the transferring authorities shall ascertain how the person who has been transferred is being treated; (c) The authorities of the transferring State undertake, in writing, to make the regular visits referred to. . . .

114

115

116

conduct an independent investigation despite appeals from the State party’s authorities at the highest levels. The Committee observes, in addition, that the calculus of risk in the case of the wife of the complainant, whose expulsion would have been some years after the complainants, raised issues differing from to the present case. More effective again would be for the State seeking assurances to persuade the other State to ratify the draft Optional Protocol to the Convention Against Torture permitting regular visits to all places of detention by the Subcommittee on Prevention of Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture – adopted on 18 December 2002 at the ﬁfty-seventh session of the General Assembly of the United Nations by resolution A/RES/57/199. E/CN.4/Sub.2/2005/L.12, 4 August 2005. See also, Human Rights Watch’s report, Still at Risk, referred to in The Guardian p. 19, 15 APR 2005. NB. Transfer of certain persons to the United States from where they might be subject to extraordinary rendition to a State where they face torture or other inhuman or degrading treatment or punishment should also be outlawed by this requirement. See The Guardian p. 4, 12 MAR 2002; p. 14, 4 OCT 2003. Author’s note. The adequacy of such assurances must be subject to review by a court according to Turkish National Extradition Case (Case No. 4) 106 INT’L L REP.298 at 301. Cf. The United States handed a Guantanamo detainee back to Egypt without contacting his lawyer and he cannot now be traced, although the Pentagon did claim that appropriate assurances had been received that Sami al-Laithi would continue to be treated humanely – BBC New website 4307310.stm, 2005/10/04 09:05:20.

Restrictions on Return

163

Thus, it can be seen that mere paper assurances should not prove sufﬁcient. Indeed, it is arguable that where the person would be surrendered to a State with a persistent record of torture or inhuman and degrading treatment, it is hard to believe that there could ever be a system that could provide effective, veriﬁable monitoring. Furthermore, obtaining diplomatic assurances for the individual to be surrendered implicitly condones the torture or inhuman and degrading treatment that is endemic in that society.

4. Fair Trial and Other Violations of Human Rights and Extradition Guarantees117 As well as the death penalty or torture, inhuman or degrading treatment or punishment, the violation of other rights in the requesting State may prevent extradition. The conditions of detention might independently constitute inhuman or degrading treatment, but they might also affect the right to a fair trial. Prison conditions alone were found to be inhuman or degrading treatment or punishment in Dougoz v Greece118 and Kalashnikov v Russia.119 The conditions for those detained at Guantanamo Bay have also been cited in cases where the United States has requested alleged terrorists.120 Conditions of detention, though, are also seen as part of obligations with respect to providing a fair trial.121 The Human Rights Committee and the European Court and former Commission of Human Rights, however, have devoted less time to considering whether the fugitive’s other rights would be violated if he were to be extradited than her/his right to life and freedom from torture. With respect to whether the requesting State will honour the right to a fair trial, the former European Commission considered the matter in App. 8299/78, X & Y v Ireland.122 On the facts, it found that the United Kingdom would not have been at fault if it had been joined as a co-defendant for extraditing the applicants to Ireland to face trial in the

117

118 119

120

121 122

Although Article 8 of the ECHR, protecting the right to a family life, is often pleaded by the applicant, the former Commission always held that the right to a family life must give way to the more pressing demands of enforcing criminal laws. See Dec. 7816/77, 9 D+R 219. App. 40907/98 (European Court of Human Rights, Third Section), 6 March 2001. App. 47095/99 (European Court of Human Rights, Third Section), 15 July 2002. Lack of space to detain the alleged participants in a planned coup in Equatorial Guinea was the reason given by Zimbabwe for not extraditing them – The Guardian p. 13, 10 AUG 2004. NB. In addition, the Zimbabwe-Equatorial Guinea extradition treaty was not in force at the date of arrest – The Guardian p. 11, 23 AUG 2004; p. 1, 11 SEP 2004. NB. The United States Senate has voted to ban cruel, inhuman or degrading treatment or punishment of the detainees in Camp X-Ray – The Guardian p. 16, 7 OCT 2005. On the other hand, President Bush sought to exempt the CIA from the ban on cruelty to terror suspects abroad – The Guardian p. 16, 26 OCT 2005. The Guardian p. 17, 22 MAR 2002. See also, See Vogler, Scope, supra n9. 24 Yb.ECHR 132 at 174 (1981).

164

Chapter 4

juryless Special Criminal Court. The Special Criminal Court was held to be independent and impartial within Article 6. However, the case indicates that in certain circumstances, the fact that the fugitive’s rights under Article 6 would be violated in the requesting State might impose liability on the requested State. This view was upheld by the European Court of Human rights, obiter, in Soering. The right to a fair trial in criminal proceedings . . ., holds a prominent place in a democratic society. . . . The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a ﬂagrant denial of a fair trial in the requesting country.123

In that light, it is likely that extradition to the United States of a person who might be transferred to Guantanamo Bay, a legal void with military tribunals,124 would lead to the requested State being found to be in breach of Article 6 ECHR or Article 14 ICCPR. To that end, the United States’ interest in obtaining Abu Hamza from the United Kingdom would seem unlikely to bear fruit unless it agrees that, if surrendered, he would receive the full panoply of Constitutional rights.125 In Kozlov v Finland,126 the former Commission held that failure to uphold fair trial standards in the requesting State could leave the requested State in breach of Article 6 of the ECHR, but on the facts that was not the case. The Court was faced with the issue in Drozd and Janousek v France and Spain:127

123 124

125

126 127

Soering, supra n72, at paragraph 113. Emphasis added. See Rogers, The Use of Military Courts to Try Suspects, 51 INT’L & COMP.LQ 967 (2002). See also, (i) Sassòli, (ii) Condorelli, De Sena, and (iii) Fletcher, Symposium on The Guantanamo Entanglement, 2 JICJ 96–132 (2004); Vierucci, Safeguards for Guantanamo Bay Detainees, 1 JICJ 284 (2003). On fair trial and Guantanamo detainees, see Rasul v Bush 542 US 466 (2004), Hamndi v Rumsfeld 542 US 507 (2004), and Hamdan v Rumsfeld 415 F3d 33 (2005). NB. It has been reported that the detainees may be returned to their home States – The Guardian p. 1, 6 AUG 2005. For those left at Guantanamo, the Pentagon has made some minor changes to improve the fairness of the proceedings, but the Center for Constitutional Rights has said that “the proposals as just window dressing, saying detainees still would not know all the evidence being used against them and had no right of appeal.” – BBC News website 4203388.stm, 2005/09/01, 04:01:34. Congress has proposed that there should be an appeal from the decision of the military tribunals, but that it should not be possible to challenge the initial detention before United States courts; even so, it is reported President Bush will reject the Bill because it grants an appeal – BBC News website 4440762.stm, 2005/11/15 22:24:14. See The Guardian p. 22, 29 MAY 2004; p. 7, 2 JUL 2004; p. 3, 24 JUL 2004. Equally, the interest shown by Yemen in his surrender also proved fruitless given that there is no Anglo-Yemeni extradition arrangement and human rights concerns with respect to Yemen – The Guardian p. 6, 7 APR 2003. In the Haroon Rashid Aswat case, BBC News website 4583520.stm, 2006/01/05 11:47:55, the United States provided a diplomatic note to the extradition judge that assured him the accused would be tried before a federal court. In the case of Gary McKinnon who is accused of hacking into United States military computers from the United Kingdom, the court has demanded an assurance that he will not be prosecuted under Military Order No. 1 before a military commission – The Guardian p. 13, 15 FEB 2006. App. 16832/90, 28 May 1991. App. 21/1991/273/344, 27 May 1992, paragraph 110.

Restrictions on Return

165

As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interests of the persons concerned. The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a ﬂagrant denial of justice.

The French Conseil d’Etat has gone further. In the Galdeano, Ramirez and Beiztegui case,128 it held that extradition will not be granted if the requesting State’s judicial system does not respect fundamental rights and freedoms. Moreover, Austria and Switzerland include the procedural guarantees of the ECHR in their domestic extradition legislation, the Swiss also incorporating the guarantees of the ICCPR.129 In McF and GK,130 the Dutch courts were prepared to entertain the idea that extradition could violate Article 6, but rejected it on the facts on the basis that the United Kingdom was also a party to the ECHR and granted a right of individual petition. This approach is much more liberal than that advocated by the European Court of Human Rights and reveals that domestic courts applying ECHR principles may be more forthright than the supranational ECHR organs.131 The Rachid Ramda case,132 a request by France to the United Kingdom, highlighted how bad faith extradition requests and fair trial guarantees can bring this to the fore: 24. As to the adequacy of the total inquiry, there remain at least two questions to which, on the face of the materials eventually before him, the Home Secretary has yet to give a properly reasoned response. One is whether there was any investigation at all of the original complaint of ill-treatment of Bensaid; the other is whether the French courts, given the record now available of their later decisions in relation to Bensaid, will now entertain any request by the claimant to exclude Bensaid’s confessions. From the Home Secretary’s conclusions about these matters may ﬂow other questions. For example, if the answer to the second question posed above is yes, it will be necessary to consider whether the French courts will investigate the facts. . . . Again, if some of the Home Secretary’s conclusions are as bleak as Mr Emmerson argues they should be, the question of bad faith may arise in relation to M Moinard’s afﬁdavit.

128 129

130 131

132

26 September 1984, Rec.307, [1985] PUB.LAW 328. See Vogler, Scope, supra n9, at p. 669, n30; Switzerland, Law on International Judicial Assistance in Criminal Matters (I.R.S.G.), Article 2, 20 INT.LEG.MAT.1339 (1981), as amended 4 OCT 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern) – the text is a combination of both translations. See also the Decree on International Mutual Assistance in Criminal Matters, 24 FEB 1982 as amended 9 DEC 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern). 100 INT’L L REP.414. See DRZEMCZEWSKI, EUROPEAN HUMAN RIGHTS CONVENTION IN DOMESTIC LAW: A COMPARATIVE STUDY, (1983). R (on the application of Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 (Admin) paragraphs 24 and 27.

166

Chapter 4 27. There is, however, one issue of law on which it may be helpful to express our view now. This concerns Mr Eadie’s reliance on recourse to the European Court of Human Rights to correct any eventual failure on the part of France to accord the claimant a fair trial. The European Court of Human Rights is not a court of appeal, and there is no recourse to it as of right (see article 28). As articles 13 and 35 of the Convention make clear, and as the Court itself has gone out of its way to stress (Kudia v Poland, . . .), it is on national authorities that the primary duty both of compliance and of affording redress for non-compliance rests. We do not consider that the Home Secretary would be justiﬁed, in spite of France’s monist system of law, in treating the Strasbourg court as part of the French legal system.

In Lodhi,133 on the other hand, an extradition request made under the United Nations Convention against Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances,134 the Divisional Court had to consider whether the fugitive would receive a fair trial as a foreigner in the courts of the UAE. [105] Because there is not the slightest danger, in our judgment, of a ﬂagrant denial of a fair trial in the present case, even if there are features of the judicial system in the UAE which would not be regarded as [ECHR]-compliant in a country bound by the Convention, we do not consider that recourse to ECHR jurisprudence takes the matter any further.135 (emphasis added)

Thus, although fair trial issues based on international human rights standards are relied on by domestic courts, they will not necessarily be applied as if the requesting State was a party to the relevant international convention. Remaining with the idea of discrimination against the transnational fugitive offender post-surrender, the Zakaev case referred to above was also decided partly on that basis – it was felt that a Chechen would not receive a fair trial in the Russian Federation.136 Qatar also refused a Russian request on the same grounds.137 Nor are fair trial issues limited to extradition or other forms of rendition to another State. In Naletili,c v Croatia,138 the case concerned transfer to the

133 134 135

136

137

138

[2001] EWHC Admin 178 at paragraph 105. Done at Vienna, 20 December 1988. There is not even a right to a jury trial in a state that operates jury trials – Klevan J in Re Gilligan, unreported, 3 February 2000. See Bofaxe 286E, The judgement on the extradition of Zakaev to Russia, 21 January 2004. Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum. See also, The Guardian p. 6, 14 NOV 2003; p. 20, 10 SEP 2004. BBC news website 3935591.stm, 2004/07/29 10:42:21; 4123191.stm Published: 2004/12/24 10:39:23. See also the Argentine refusal of extradition to Spain of a member of ETA because of Spain’s alleged treatment of Basque separatist prisoners – The Guardian p. 14, 21 JUN 2004. Germany rejected a request from Turkey because of the latter’s human rights record, although the case is slightly confused since the fugitive seems to have been charged with treason that should be a political offence and outwith the European Convention on Extradition, 1957 – The Guardian p. 12, 28 MAY 2003. App. 51891/99 (European Court of Human Rights, Fourth Section), 4 May 2000.

Restrictions on Return

167

International Criminal Tribunal for the former Yugoslavia. In part, the applicant complained that the ICTY was not an independent and impartial tribunal within the meaning of Article 6 of the ECHR. The European Court of Human Rights held that there would be no breach of Article 6 by Croatia if he were to be surrendered (paragraph 1(b)): “Involved here is the surrender to an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence”. he also complained that Article 7 of the ECHR, non-retroactivity, would be violated because the penalties that might be imposed by the ICTY would be more severe than those of a Croatian Court. The European Court of Human Rights held that even if Article 7 might apply to the transfer, his crimes would fall within Article 7.2139 such that Article 7.1 would be limited in its effect. Overall, this is a developing area of the law relating to rendition of fugitive offenders in general that utilizes ideas and concepts from extradition law and international human rights law.

5. Nationality as a Defence It has already been seen in Lodhi140 that an accused feared extradition because he believed non-nationals in the requesting State would not receive a fair trial. The corollary of that stance is seen in the extradition laws of several States. Civil law States do not usually extradite their own nationals. Common law States never adopted such a restrictive general approach,141 although in certain speciﬁc cases a discretionary clause to that end was included in extradition arrangements. As Oppenheim’s International Law142 explained, [many] States, however, such as France and Germany, have adopted the principle of never extraditing one of their own subjects to a foreign State but themselves punishing their own subjects for grave crimes committed abroad. Other States, e.g. Great Britain have not adopted this principle, and, in the absence of treaty provisions to the contrary, make no distinction between their own subjects and other persons who are alleged to have committed extraditable crimes abroad.

139

140 141

142

Article 7.2 provides as follows: This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. [2001] EWHC Admin 178. Indeed, the United Kingdom was prepared to extradite one of its own nationals to the United States despite the fact that he could have been prosecuted in the United Kingdom. The Guardian p. 9, 14 NOV 2002. Ed. LAUTERPACHT, 8th ed. 1955, at p. 699.

168

Chapter 4

The effect of this restriction can be quite dramatic. In Bonnechaux v Switzerland143 the former European Commission on Human Rights upheld the 35 month pre-trial detention of a 74 year old French national by the Swiss authorities, despite Article 5(3) of the ECHR, on the ground that if he were to be released there was a serious risk that he might ﬂee to France from where extradition would be impossible and where there was no guarantee that he would be prosecuted for the offences committed in Switzerland. The rationale for this policy, as explained by civil law commentators,144 is based, ﬁrst, on one’s own national judges being also the natural judges of the offence, next, on a State’s alleged duty to protect its own nationals and, ﬁnally, on the fear that a foreigner would be prejudiced at a trial in the locus delicti.145 In civil law jurisdictions, this restriction has been elevated to a rule of international law. The Austrian Supreme Court put it thus: It may also be observed that in criminal matters there is a generally recognised rule of international law (Article 9 of the Austrian Federal Constitution) that a State’s own nationals must never be extradited to another State in whose territory they have committed a criminal offence.146

French extradition law is similarly absolute on this matter. Il est de principe à peu près constant depuis un siècle, du moins en droit français et malgré certaines critiques doctrinales tant sur le plan international . . ., qu’un Etat n’extrade pas ses nationaux. Cette règle est exprimée en termes absolus par les articles 3, alinéa 1er, et 5, alinéa 1er, de la loi du 10 mars 1927 à l’égard de tous les “ressortissants” de la France, c’est-à-dire tous ceux dont elle assurait la représentation internationale (Français et “protégés”). Elle se réduit actuellement aux Français. Elle ﬁgure également dans toutes les conventions signées par la France.147

143

144

145

146

147

(1979) 3 EHRR 259, p. 264, at paragraph 64. See also the decision of the Swiss Ministry of Justice to surrender the Russian Yevgeny Adamov to the United States despite a competing request from Russia, because he could be extradited from the United States to Russia after serving any sentence whereas the reverse would not be true because of Russia’s non-extradition of nationals – BBC News website 4304462.stm, 2005/10/03 15:32:12. E.g. LAMMASCH, BELATZIS and BEDI, all cited by SHEARER, EXTRADITION IN INTERNATIONAL LAW (1971), at p. 121. SHEARER, supra n144, at pp. 18–20. This fear of prejudice and discrimination in the requesting State is one that pre-dates the State and concomitant nationality – in Article II of the Treaty of Kutschuk-Kaïnardji, 1774, between the Russian and Ottoman Empires, surrender of Christians by Russia and Moslems by the Sublime Porte was the sole exception to a duty to refuse asylum to those guilty of capital crimes, disobedience or treason. Service of Summons in Criminal Proceedings (Austria) Case, 38 INT’L L REP.133 at 134. Austria Supreme Court. Note that the limitation is with respect to extradition another State – extradition to the International Criminal Court, for example, should never be prohibited on grounds of nationality, even if it is a rule of international law. ENCYCLOPEDIE DALLOZ: PENAL III (DR-INST), paragraphs 151 et seq., (1968). On accession to the European Convention on Extradition, 1957, the Nordic States (Denmark, Finland,

Restrictions on Return

169

However, the protection in French law does not extend to refugees resident in the requested State and granted protection there.148 There is both Swiss and German authority to the same effect as the French law on this point. In T v Swiss Federal Prosecutor’s Ofﬁce,149 the Swiss Federal Tribunal, having examined the rights conferred on refugees by the Convention Relating to the Status of Refugees 1951, held that refugees were only assimilated to nationals to a limited extent and this did not encompass the right not to be extradited. However, in The Netherlands, the executive has a discretion to refuse the extradition of a non-national who has been integrated into the Dutch community and who can be prosecuted in Dutch courts, although this discretion is not exercisable by the extradition courts.150 The protection afforded to true nationals, though, verges on the absolute throughout Continental Europe. However, the protection is not conﬁned to civil law States, although they are the principal users of this restriction on return. The government of the United Kingdom, for instance, used to reserve the right not to extradite nationals; the situations were limited to those occasions where there was no general extradition treaty with the requesting State and the latter was seeking the fugitive’s return under a multilateral, anti-terrorist convention – the Extradition Act 2003, however, repealed the relevant legislation.151 The refusal to extradite nationals is, in sum, an indiscriminate protection, unsuitable to the needs of mutual assistance in law enforcement.152 Despite the rationales propounded by the civil law commentators noted above, it had to be questioned whether such an absolute bar to extradition, even allowing for trial in the national’s own State,153 was still appropriate. Within the European

148 149 150

151

152

153

Iceland, Norway and Sweden) not only extended the deﬁnition of nationals to include those ordinarily resident, but also the nationals and residents of the other Nordic States; see, Karle, Some Problems Concerning the Application of the European Convention on Extradition, at pp. 49 et seq. of LEGAL ASPECTS OF EXTRADITION, (COUNCIL OF EUROPE, 1970). Supra n147, at paragraph 157. 72 INT’L L REP.632 at 635–6 (1966). MY v Public Prosecutor, 100 INT’L L REP.401; see also, KM v Netherlands, 100 INT’L L REP.430 (Dutch Supreme Court). The Nordic States have made declarations with regard to Article 6 of the European Convention on Extradition (ETS 24, 1957) that include within the term national, nationals of other Nordic States and domiciled aliens. While the occasions when such a provision would be implemented will be rare, its inclusion should be avoided at all costs in the future, not least because it may in fact be unconstitutional – nationals of a friendly State enjoy all the same rights as British nationals while within the protection of the Crown – Johnstone v Pedlar, [1921] AC 262 per Viscount Finlay at 274. NB. In Shkelzen v Germany, App. 44770/98 (European Court of Human Rights, Fourth Section), 20 January 2000, it was held it was not discrimination within the meaning of Articles 14 and 5.1(f) ECHR to protect Germans but not other permanent residents. See ENCYCLOPEDIE DALLOZ, supra n147, at paragraph 152. Cf. The decision in In re Korosi, [1925–26] Ann.Dig.309 (Italian Court of Cassation, 1925). the London Scheme for Extradition within the Commonwealth 2002, provides that “each country which reserves the right to refuse to extradite nationals or permanent residents in accordance with clause 15 paragraph (3), will take, subject to its constitution, such legislative action and other steps as may be necessary or expedient in the circumstances to facilitate the trial or punishment of a person whose extradition is

170

Chapter 4

Community with its open borders policy since 1992, two member States, Greece and the Federal Republic of Germany, refused under any circumstances to surrender their nationals.154 Moreover, the Nordic States refused extradition of not just their own nationals, but those of other Nordic States and domiciled aliens, too.155 However, given that within Europe the United Kingdom had done away with the prima facie requirement, having ratiﬁed the European Convention on Extradition upon passage of the 1989 Extradition Act,156 the civil law States of the European Union were effectively obliged to consider relaxing the absolute bar on the extradition of nationals. The European Union Convention Relating to Extradition between Member States, 1996,157 provides in Article 7.1 that extradition may not be refused on the ground that the “person claimed is a national of the requested Member State”. However, paragraphs 2 and 3 permitted a ﬁve year rolling reservation allowing States to continue to refuse extradition of their nationals. The Explanatory Report158 made clear several matters: ﬁrst, that the Nordic members of the European Union will no longer classify domiciled aliens as nationals for the purposes of intra-E.U. extradition; secondly, that the protection of nationals might be achieved by those States which do not ordinarily extradite nationals, by entering a reservation that any sentence imposed by the requesting State will be served in the requested State; next, that given that some States are constitutionally prohibited from extraditing their own nationals, that they review the scope of the restriction at least once every ﬁve years; and, ﬁnally, that reservations are not indeﬁnite and can lapse. More generally, Shearer’s prognostication back in 1971,159 that the repatriation of prisoners to serve their sentence in their own country would eventually convince civil law States to extradite their nationals, is at last coming true. The idea of repatriating prisoners is an old one and was included in the Franco-Basle treaty of 1781.160 It was also implemented in the Arab League

154

155 156 157 158 159 160

refused on that ground.” (clause 16.1). Equally, Article 3.3 of the Anglo-Brazilian Extradition treaty of 1995, in force 1997, UKTS 58, 1997, provided that if a request was turned down on grounds of nationality, then the requested State would submit the case for trial within its own jurisdiction. Where Israel refused the extradition to the United States of a dual Israeli-U.S. national, Israel prosecuted – The Guardian p. 18, 26 FEB 1999; p. 16, 23 MAR 1999. See paragraph 92, vol I, HOME AFFAIRS SELECT COMMITTEE, SEVENTH REPORT, PRACTICAL POLICE CO-OPERATION IN THE EUROPEAN COMMUNITY, 20 JULY 1990, HCP 363 (1989–90); hereinafter, HCP. As far as the Federal Republic of Germany is concerned, the prohibition against extraditing nationals is part of the Constitution; see, Art. 16(II), Basic Law of the FRG, 1949, (155 B.F.S.P. 503). Germany even refused the extradition of a naturalised German who had been Dutch and who had served as an ofﬁcer in the SS, in which position he had committed war crimes in The Netherlands – The Guardian p. 15, 10 APR 2001. Supra n147. SI 1990 No. 1507. See now, Category 1 of the Extradition Act 2003. 1996 OJ C 313. 1997 OJ C 191, pp. 20–21. Supra n144, at pp. 125 et seq. MARTENS, RECUEIL DE TRAITES, 2nd ed., vol. iii, 376, Arts. I & II.

Restrictions on Return

171

Agreement of 1952.161 It is based on the principle that a national’s own State is likely to provide the best opportunities for rehabilitation.162 Given that in the event of conviction the extraditee will be returned to The Netherlands to serve his sentence, the Dutch government indicated its willingness to surrender its own nationals to the United Kingdom.163 As noted above, this was one possible approach under the European Union 1996 Convention Relating to Extradition between Member States.164 Such a policy, if adopted generally, would have resulted in a substantial improvement in the free-ﬂow of fugitives to face trial and would still have provided the fugitive with the best opportunity for rehabilitation and maintenance of family contacts.165 The civil law States’ refusal to extradite their own nationals displays a distrust of other States’ systems of criminal justice. The civil lawyers’ criticism of the British demand that a prima facie case be made out before extradition ought to be granted, was that it displayed a similar distrust of other legal systems. However, the refusal to extradite nationals cannot even be justiﬁed on the ground that a person should not be removed from a State where he is free unless the requesting State has at minimum shown that he has a case to answer, an argument that can at least be proposed in favour of the prima facie requirement. Fortunately, as certain crimes increasingly threaten the international community, civil law States, with respect to their extradition relations with common law States, are generally beginning to relax their strict adherence to their previous practice of never extraditing their nationals. The most dramatic change is to be seen in the European Arrest Warrant.166 As a Council Framework decision, unlike the 1996 EU treaty, it did not need to be ratiﬁed by member States of the European Union. Refusal to extradite nationals is limited to the situation set out in Article 5.3: Article 5: The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

161 162

163

164 165 166

See §17, 159 B.F.S.P.606. See also, the case of the Libyan national convicted of the Lockerbie bombing – The Guardian p. 7, 15 JUL 2002. See paragraph 92 and supplementary paragraph 93 (p. lv), HCP-I, supra n154. Paragraph 15 of the 1990 Conference on the Human Dimension of the OSCE in Copenhagen, (OSCE (CHD) Copenhagen Document, 11 HRLJ 232 (1990), and Buergenthal, A new public order for Europe, 11 HRLJ 217 (1990)), encourages the transfer of sentenced prisoners to their home States and, to that end, recommends States become parties to the 1983 Convention on the Transfer of Sentenced Prisoners, ETS 112. See also, Orie, ‘The Problems with the Effective Use of Prisoner Transfer Treaties, in ATKINS, THE ALLEGED TRANSNATIONAL CRIMINAL, 1995, pp. 59 et seq. Supra n157. See also, The Guardian p. 14, 24 SEP 1998. OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA).

172

Chapter 4 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.167

This change with respect to common law jurisdictions, though, is still only gradual. The United States concluded an extradition treaty with Colombia on 14 September 1979 that did allow for the surrender of nationals. The problem had previously been that Colombian nationals who had imported drugs into the United States could not be extradited and had corrupted Colombian law enforcement ofﬁcials to such an extent that trial in Colombia was almost impossible. However, the change in the 1979 treaty was not popular and after several attempts it was declared unconstitutional by the Colombian Supreme Court.168 Nevertheless, Colombia extradited a drug baron in 1999, the ﬁrst time in nine years.169 Since then, there have been several Colombian nationals surrendered to the United States since 1999 in relation to drugs crimes, including members of the FARC.170 Greater success has been achieved in the United States treaty with Italy of the 13 October 1983.171 The Treaty, Article IV of which expressly states that extradition shall not be refused on grounds of nationality, is aimed to combat the co-ordinated organised crime in the two countries. Nevertheless, whether or not the principle of non-extradition of nationals is relaxed as regards common law States, there are certain inherent problems with the principle relating to some subsidiary matters. The ﬁrst of these concerns the question of reciprocity in extradition law. Since extradition is usually based on a bilateral treaty between the requesting and requested States, it is natural to conclude that it ought to be reciprocal; thus, if the Federal Republic of Germany will not extradite its nationals to the United Kingdom, then the United Kingdom ought not to surrender its nationals to the Federal Republic of Germany. With the arrest of Donna Maguire in Belgium in June 1990 bringing to light the fact that a German request for her extradition was still outstanding in the Republic of Ireland, Irish commentators and politicians, though not the Department of Justice, argued that her surrender was not permitted under the European Convention on Extradition because

167

168

169 170 171

NB. The position is still not 100% watertight. A German court has rejected a request for a German national under the EAW on constitutional grounds – it appears that the German implementing legislation was not properly passed – The Guardian p. 4, 19 JUL 2005. See 27 INT.LEG.MAT.492 (1988). Colombia passed a new law to allow for the extradition of its nationals in 1997, but it contained a loophole that would protect many of the leaders of the drug cartels and the United States government criticised the new law – see The Guardian p. 13, 17 DEC 1997. The Guardian p. 13, 22 NOV 1999. See BBC News website, 4292849.stm, 2005/02/23 22:09:10; 4342503.stm, 2005/03/12 00:10:16. TIAS 10837.

Restrictions on Return

173

the Federal Republic of Germany would never extradite its own nationals and, thus, the necessary element of reciprocity was missing.172 The commentators’ view was followed by the Irish Justice Minister in 1997, though, when she released Owen Corry, an Irish national, held in relation to an extradition request from Germany for his alleged involvement in the bombing of British Army barracks.173 On the other hand, the British courts refused to reject an extradition application from Germany for a British national, Roisin McAliskey, on the grounds that the Germans would not reciprocate.174 The Australian courts similarly refused to reject an extradition request from Israel simply because the Israeli Extradition Law 1978 prohibited the extradition of nationals, contrary to what had been agreed in the Israeli-Australian Extradition Treaty.175 The idea of strict reciprocity adopted in the Corry case ought strongly to be rejected, although it does make clear the gulf that separates civil law and common law States on the issue of nationals. Common law jurisdictions will usually allow extradition, even where the treaty with the civil law State gives it a discretion not to extradite its nationals, thus revealing that reciprocity in practice will not be pursued to the detriment of co-operation in law enforcement.176 The Corry case, above, was concerned with terrorism and the fact that he escaped prosecution because of the application of the nationality principle by a common law State without active personality jurisdiction,177 shows the problems with reciprocity and with blanket bans on surrender. Another, minor issue connected with the nationality principle, is the scope of active personality jurisdiction exercised by the State after it has refused extradition. According to research carried out by the European Committee on Crime Problems,178 some States only prosecute their own nationals for crimes committed abroad if a requirement of double criminality is satisﬁed, either in abstracto or in concreto.179 On that basis, nationality might give absolute protection. Given that double criminality would have been a prerequisite of any extradition, though, then there seems to be no sustainable objection to this extra demand.

172 173 174 175

176

177

178

179

See the Irish Times, p. 2, 22 JUN 1990. The Guardian p. 8, 16 JAN 1997. Re McAliskey, CO/156/97, QBD, 22 January 1997. Hempel v Attorney-General, 87 INT’L L REP.159. The fugitives were Israelis who were trying to argue that the Israeli statute vitiated the treaty as a whole. Escobedo v U.S., 623 F.2d 1098 at 1106 (1980); the discretion is exercised by the executive, not the courts. See also, Hempel, supra n175, at 164–67. The court in Hempel, supra n175, at 166, took note of the fact that the 1978 amendment to Israeli extradition law had been accompanied by a change to the Penal Code giving Israeli courts power to hear criminal cases against Israeli nationals and residents for offences within the Schedule to the Extradition Law 5714 – 1954, no matter where in the world the offence occurred. EXTRATERRITORIAL CRIMINAL JURISDICTION, (COUNCIL OF EUROPE, 1990), pp. 10–11. See Chapter Three above.

174

Chapter 4

The ﬁnal problem, however, does raise some serious questions about the principle of not extraditing nationals. In circumstances where a request is made for a national of the requested State, the requesting State would be asserting territorial jurisdiction over the fugitive and could press charges if the fugitive were ever to enter its borders: on the basis that it will not extradite its own nationals, the requested State claims jurisdiction over the offence under the active personality principle. The fugitive may, therefore, end up being prosecuted for the same offence twice, although in two separate jurisdictions. Case law and commentators are unanimous that, subject to a treaty provision to the contrary, there is no international rule of non bis in idem.180 In E v Police Inspectorate of Basle,181 the Swiss Federal Tribunal (Criminal Court of Cassation) put it as follows. The law of nations does not recognize any rule which would prevent the criminal authorities in the two States from exercising jurisdiction over the same offence. In other words, there is no rule in such circumstances excluding concurrent jurisdiction. . . .182

Green points out that “since there are two different legal systems involved, the plea of double jeopardy cannot arise” and he gives the example of Germany prosecuting its nationals under its own criminal code for offences for which they have already been tried by a war crimes tribunal.183 However, it cannot be right that a fugitive should be subjected to double jeopardy because of a rule of jurisdiction exercised by the State. The nationality principle may be inappropriate, but given that a large number of States exercise it, then there ought to be a uniform approach by States towards accepting that the principle of aut dedere, aut judicare184 binds both the requesting and requested States towards the fugitive. This matter seems eminently suitable for a multilateral treaty to set a standardised policy. Indeed, the Schengen Convention 1990185 provides in Articles 54–58 that Schengen States shall not ordinarily prosecute a person who has already been ﬁnally judged by another Contracting Party for the same offences. There is an option under Article 55 for States to make a declaration at the time of ratiﬁcation that in limited circumstances, they reserve the right to prosecute someone who has already been ﬁnally

180 181 182 183

184 185

See, for example, Article 9 of the European Convention on Extradition 1957. 75 INT’L L REP.106 (1979). See Conway, Ne bis in idem in International Law, 3 ICLR 217 (2003). International Crimes and the Legal Process, 29 INT’L & COMP. LQ 567, citing Lischka et al. in The Times, 12 FEB 1980. Cf, R v Roche, (1775), 168 ER 169; Treacy v DPP, [1971] AC 537; and Libman v The Queen, 21 DLR (4th) 174 at 199–200, (1986). However, since most extradition treaties prevent extradition where the fugitive has already been tried for the offence in the requested State, this double jeopardy could not arise through extradition, only through the voluntary visit of the fugitive to the other State after being tried in the ﬁrst State. See Chapter Five below. 30 INT.LEG.MAT.84 (1991); see Appendix. See also, MEIJERS, SCHENGEN, 2nd ed. 1992.

Restrictions on Return

175

judged. Those circumstances include where the offence occurred on the territory of the second State or the offence affected the security of the State or it was committed by a State ofﬁcial in violation of the obligations of his ofﬁce. In general, though, the Schengen Convention implements the principle of non bis in idem.186 In conclusion, the strict application of the principle of not extraditing nationals may be on the wane, but it is still pervasive in civil law jurisdictions. As a blanket restriction on return it cannot be supported between States which respect each other’s system of criminal justice and it can lead to offenders escaping prosecution. The common law States should press for its abolition on the basis that it is not justiﬁable in terms of the theories of and the rationales for extradition law.

6. Military Offences Extradition is usually refused for military offences. The question, though, is what constitutes a military offence. The broadest application of the exemption arose in the case of In re Banegas.187 The Supreme Federal Court of Brazil held that a request from Bolivia should be denied on the ground that the offence charged was military in nature. The fugitive was charged with the “common crime of homicide”. The case arose in the context of the armed forces, at the behest of the State authorities, putting down a revolt by executing the military and civilian personnel involved. According to Freire J, it was thus rendered a ‘military offence’. On this reading, any crime committed by members of the armed forces would be a military offence; it would even permit a defence of superior orders to war crimes violations. While the instant case was also argued on the basis of the political offence exemption,188 it is not in conformity with the modern interpretation of the military offences exception.

186

187 188

However, there does have to have a previous judgment for Article 54 of Schengen. In R (on the application of Abdullah) v Secretary of State for the Home Department unreported, 19 March 2001, there had been no conviction in The Netherlands in return for the transnational fugitive offender giving evidence for the State, so he could now be extradited to Belgium with respect to the same set of events. In Miraglia, Case C-469/03, 10 March 2005, the ECJ held that discontinuance of proceedings in one Schengen State did not allow the accused to plead non bis in idem: 35. Consequently, the reply to be given to the question referred has to be that the principle ne bis in idem, enshrined in Article 54 of the CISA, does not fall to be applied to a decision of the judicial authorities of one Member State declaring a case to be closed, after the Public Prosecutor has decided not to pursue the prosecution on the sole ground that criminal proceedings have been started in another Member State against the same defendant and for the same acts, without any determination whatsoever as to the merits of the case. See also, Case C-288/05, reference by the German Bundesgerichtshof to the ECJ of June 30, 2005; Conclusions de l’Avocat Général M. Dámaso, Esbroeck c Openbaar Ministerie, 20 October 2005, l’Affaire C-436/04. Supreme Federal Court of Brazil, 15 INT’L L REP.300 (1948). It would also appear not to be a political offence – see Chapter Five, below.

176

Chapter 4

The more usual deﬁnition of the military offence exception is found in the French extradition statute of 1927.189 Article 4 holds . . . que l’extradition est applicable aux infractions ‘commises par les militaires, marins et assimilés, lorsqu’elles sont punies par la loi française comme infractions de droit commun’ . . . L’immunité concerne les infractions de caractère purement militaire, c’est-à-dire celles qui sont prévues par le code de justice militaire.190

Recent French extradition treaties, such as the one with Algeria,191 provide that an offence will only fall within the exception if it consists solely of a breach of military law. The European Convention on Extradition of 1957 achieves the same result by a negative deﬁnition; Article 4 only prohibits extradition if the military offence is not an offence under ordinary criminal law. Although the clause is not always included in treaties made by common law States, the London Scheme for Extradition within the Commonwealth 2002, contains the exception and deﬁnes it as follows. 14. A request for extradition may be refused in the discretion of the competent authority of the requested country if – ... (d) the offence is an offence only under military law or a law relating to military obligations.

The objective is identical in all versions; to render non-extraditable only those offences which appear solely in the requesting State’s military code. Merely because the fugitive would face trial before a military tribunal if surrendered does not necessarily mean that the offence charged is of a military character. Everything turns on whether the facts make out a crime under the ordinary criminal law as well as under the military code. On that understanding of the military offence exemption, deserters and those refusing to do military service, for whatever reason, ought not to be extradited.192 The 1990 Copenhagen Conference on the Human Dimension of OSCE193 reafﬁrmed the right of persons to refuse to do military service, revealing yet again the interplay of human rights and international criminal law in protecting freedom of conscience. Strictly military offences do not give rise to an obligation within the international community to assist other States in the enforcement of domestic laws. On the one hand, breaches of a State’s military code 189 190 191 192

193

La Loi du 10 mars 1927. ENCYCLOPEDIE DALLOZ, supra n147, at paragraph 209. 27 Août 1964, Décr. 11 Août 1965. See Art. 15. Cf. The North Atlantic Treaty, 1949, provides that members of NATO will deliver up deserters to other member’s armed forces. 34 UNTS 243. See also Article 5 of the Status of Forces Agreement between the Parties to the North Atlantic Treaty, 1952, 199 UNTS 67. Supra n163, at paragraph 18.

Restrictions on Return

177

are not serious enough to warrant the use of international agreements for mutual assistance in criminal law enforcement, unless those offences are also common crimes. On the other hand, though, the exemption is designed to promote freedom of conscience by protecting those persons who oppose military service, in the same way that the political offence exemption was designed to guarantee a person’s freedom of thought.

7. Triviality, Passage of Time and Bad Faith The London Scheme for Extradition within the Commonwealth 2002, provides in clause 13(b) that, 13. (b) (i) (ii)

The extradition of a person sought also will be precluded by law if – the competent authority is satisﬁed that by reason of the trivial nature of the case, or the accusation against the person sought not having been made in good faith or in the interests of justice, or (iii) the passage of time since the commission of the offence, or (iv) any other sufﬁcient cause, it would, having regard to all the circumstances be unjust or oppressive or too severe a punishment for the person to be extradited or, as the case may be, extradited before the expiry of a period speciﬁed by that authority.194

This provision gives the fugitive three extra speciﬁc grounds for challenging his surrender within the Commonwealth, although elements occur in other extradition arrangements. There are different justiﬁcations for each of the three. The ‘passage of time’ ground most obviously seeks to protect the fugitive’s right to a fair trial, whereas the denial of requests made in bad faith aims not only to preserve the fugitive’s fundamental rights but also to uphold the proper use of the international arrangement between the States; requests rejected on the basis triviality reinforce the idea that extradition is not to be granted lightly, for the fugitive’s life may well be seriously disrupted. All three have been utilised in past cases. All these grounds are predicated on return being “unjust or oppressive”. Subparagraphs (i), (ii) and (iii) are merely means of proving the lack of justice or the oppression. Lord Diplock deﬁned “unjust and oppressive” in Kakis:195

194

195

See also, clause 15.2: (2) A request for extradition may be refused if the competent authority of the requested country determines: – (b) it would be, having regard to all the circumstances of the case and to the likelihood that the person would be immune from punishment if not extradited, unjust or oppressive or too severe a punishment for extradition to proceed. Kakis v Government of the Republic of Cyprus, [1978] 2 All ER 634 at 638h.

178

Chapter 4 ‘Unjust’, I regard, as directed primarily at the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive’ as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping and between them they would cover all cases where to return him would not be fair.

In some respects, therefore, although its underlying rationales go further than mere denial of procedural fairness, this provision might be moving towards the concept of non-extradition where fair trial would not exist in the requesting State.196 While Soering197 held that extradition ought to be refused if there would be a ﬂagrant denial of fair trial, it may be that clause 13 of the Commonwealth Scheme presages a broader approach. In R v Secretary of State for the Home Department, ex parte Hagan,198 the Divisional Court on judicial review of the Home Secretary’s decision to surrender heard argument that because of the association of the fugitives with an unpopular religious cult in the requesting State, they would not receive a fair trial. The case was decided under the 1870 Act, which did not provide for review by the High Court of the request on these grounds.199 It was clear, however, that the fairness of the trial would be one of the factors to be considered before agreeing to the surrender, separate from whether there was delay, triviality or bad faith. In Re Vito Dell’Aglio,200 the court was prepared to have regard to the fugitive’s personal circumstances which went beyond the issues of triviality, passage of time and bad faith, suggesting that “unjust or oppressive” provide a general ground for challenging a decision to surrender discrete from the speciﬁc descriptions.201 Beyond the Commonwealth Scheme, the Irish High Court held that where the fugitive had been prosecuted in the Republic of Ireland under legislation giving jurisdiction over crimes committed in the United Kingdom and believed that he would therefore not be extradited to Northern Ireland on his release, it would be unjust to extradite him.202 196

197 198 199

200

201

202

See the alleged fears of the Libyans accused of the Lockerbie bombing re trial in Scotland – The Guardian p. 20, 11 OCT 1993; p. 4, 12 OCT 1993. Series A, vol. 161 (1989). Unreported, QBD, CO/1301/93, 15 December 1993. Section 11(3) of the Extradition Act 1989 included grounds (i) to (iii), but the Extradition Act 2003 has omitted grounds (i) and (ii). Unreported, QBD, CO/389/95, (Transcript: Smith Bernal) 30 APRIL 1997. The courts and the Secretary of State may refuse extradition where to send the person to the requesting State would be unjust and oppressive on the grounds of the state of their mental health – Re Davies, unreported, CO/433/96, 30 July 1997, and the Roisin McAliskey case, The Guardian p. 1, 10 MAR 1998, and p. 4, 11 MAR 1998. Austria refused an extradition request from Italy regarding a former Nazi implicated in a wartime atrocity on the ground of his age and frailty – The Guardian p. 15, 21 APR 2001. Cf. The United States Court of Appeals for the Ninth Circuit held that insanity was not a bar to extradition to Mexico, especially given the inquisitorial nature of the trial – Lopez-Smith v Hood 121 F.3d 1322 at 1325 (1997). Even though the extradition Act 2003 drops the Commonwealth clause apart from passage of time, it included a new provision based on the injustice or oppression of surrendering the fugitive. Ss25 and 91 deal with the physical and mental health of the fugitive. Fusco v O’Dea 1992 no. 145P, unreported, 28 June 1995. Part of the decision was that he now had

Restrictions on Return

179

7.1 Triviality It ought to be noted at the outset that as it stands only offences punishable by imprisonment for two years or greater penalty are returnable under Article 2 of the Scheme.203 Thus, it cannot be the charge but the facts relating to the request that render the offence too trivial. It might be argued that theft is theft no matter what the value of the item stolen, but there are ﬁnancial considerations to be taken into account in setting in motion legal proceedings to extradite a fugitive, possibly from half way around the world. This underlying principle is seen more clearly in the equivalent measure found in Article 4 of the 1981 Swiss Law on International Judicial Assistance in Criminal Matters. A request shall be rejected if the signiﬁcance of the offence does not justify a carrying out of the proceedings.

Whether an offence is trivial is a question of fact and law.204 From similar cases under the 1881 Imperial Fugitive Offenders Act, it would seem that the facts of the alleged crime are all-important. Thus, in Re Clemetson205 dishonesty by an employee working in a position of trust was held not to be trivial, although the amount stolen was not signiﬁcant in itself.

7.2 Passage of Time206 So far, no fugitive has succeeded in persuading the European Court of Human Rights, nor the former Commission, that a violation of the right in Article 6 of the ECHR to a hearing within a reasonable time justiﬁed refusing extradition, but a comparison might properly be drawn with this ground under the Commonwealth Scheme. It has been the subject of review by the British House of Lords in Union of India v Narang and again, shortly afterwards, in Kakis.207 In both Narang and Kakis, the House of Lords indicated that the delay in bringing the request must not result from the fugitive’s actions if the safeguard is to be applied.208

203

204 205 206

207

208

family in the republic and that the Northern Irish courts would credit the time served in the Republic, anyway. Some jurisdictions are more lax – the United Kingdom, for instance, allows extradition for offences carrying a penalty of at least 12 months. Fernandez v Government of Singapore, [1971] 2 All ER 691 at 693. The Times 23 NOV 1955; [1956] CRIM.L REV.50. Sometimes the passage of time can work in favour of extradition. In Quinlivan v Conroy (No. 2) [2000] 3 IR 154, the Irish High Court held that the delay in extraditing the fugitive would mean that adverse publicity from the time of his arrest would have faded in the minds of any jury. Narang, [1977] 2 All ER 348; Kakis, supra n195; see also Jones, Passage of Time and the Return of Fugitive Offenders, [1980] CRIM.L REV.29. See Lord Diplock in Kakis, supra n195, at 638. See also R v Governor of Pentonville Prison, ex p. Teja, [1971] 2 All ER 11. See also, Langan v O’Dea 1996 540Sp, unreported, Irish High

180

Chapter 4

In Narang, between the commission of the offence and the extradition request, emergency powers had been assumed in India and an indeﬁnite, unappealable detention order had been made against one of the fugitives. The House of Lords held that for a request to be unjust or oppressive by reason of passage of time, the relevant factors to take into account concern only those arising from the delay in hearing the case. Events which have arisen during the passage of time, though not related directly to the delay in the trial, are to be ignored.209 Furthermore, in Hughes v Government of Denmark and Another,210 the Divisional Court was not prepared to take into account the fugitive’s deteriorated medical condition in the period between the offence and the extradition hearing. Section 11(3)(b) of the 1989 Act211 is concerned with oppression arising by reason of the passage of time. That is to say, it needs to be shown that it is the passage of time that has caused the oppression. That argument, on any view, fails in this case for two reasons. The ﬁrst, and most pressing, is that in truth it is not the passage of time that is complained of, but the contingent factor that the Applicant’s mental state has worsened during her time in prison. Section 11(3)(b) does not in my view direct itself to that circumstance. It is concerned with a case where time has been allowed to pass to the extent that that passage of time is oppressive. No-one can say in this case that the passage of time in itself is oppressive, or that it leads to, or causes, the return of the Applicant to Denmark to be oppressive.

The Narang interpretation had been, however, rejected by Lords Russell and Scarman in Kakis:212 It is not permissible, in my judgment, to consider the passage of time divorced from the course of events which it allows to develop. For the purposes of this jurisdiction, time is not an abstraction but the necessary cradle of events, the impact of which on the applicant has to be assessed.

209 210

211

212

Court, 10 October 1997. In the Zakaev case, discussed in Bofaxe 268E, 21 January 2004 (Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum), part of the reasoning of the extradition judge was that the crimes alleged had been committed in 1995–96, yet the warrant was only issued in 2001 and after its issue the accused had meetings with Russian ofﬁcials before extradition requests were made to Denmark and then the United Kingdom. Supra n207, at 379h and 380b-d, per Lord Keith. Unreported, CO/667/94, QBD, (Transcript: John Larking), 11 October 1994. Of course, the fugitive might be too ill to be surrendered – see the refusal by Pakistan to extradite Agha Hasan Abedi, The Guardian p. 14, 15 JUL 1994. Author’s footnote. Section 11 was repealed by the Extradition Act 2003, but passage of time is retained as a ground for refusal with respect to both Category 1 and Category 2 countries – see, ss14 and 82. Supra n195, per Lord Scarman at 645; also Lord Russell at 641a–b. See, as well, Re Reyat’s Application for a Writ of Habeas Corpus, QBD, CO/1157/88, 22 March 1989, (MWC); R v Governor of Brixton Prison, ex p.Osman (No. 3) [1992] 1 All ER 122 at 128–29 and 131–32; R v Secretary of State for the Home Department, ex p.Launder, The Times, 29 OCT 1996, where delay was rejected by the QBD.

Restrictions on Return

181

This second view is to be preferred, but it must be viewed in the context of the facts of the case. In Narang and Hughes, the detention order and the applicant’s mental condition had nothing to do with the offence for which the fugitives were requested, whereas in Kakis the passage of time had led to the disappearance of two compellable defence witnesses for any trial in Cyprus.213 However, a wide interpretation of Kakis is still correct, for clause 13 of the Scheme talks in terms of ‘having regard to all the circumstances’, not just those to do with the offence. The Brazilian Supreme Court held with respect to the English Great Train Robber, Ronnie Biggs, that a crime for which he had been convicted over thirty years previously could not be the subject of an extradition request because it would be statute barred under Brazilian law.214 The Irish Supreme Court dealt with whether it would be oppressive to extradite the fugitive to Northern Ireland after a very long delay, part of which was due to the transnational fugitive offender and part due to the dilatoriness of the RUC in McNally v O’Toole.215 The Supreme Court, noting the failure by the RUC to seek to trace him promptly and to inquire of INTERPOL as to his whereabouts after he left Northern Ireland in 1990, alongside his family ties in the Republic and his belief that the 1998 Good Friday Peace Agreement had ended any further interest in him, held it would be oppressive to surrender him. In one French case, a former Italian Red Brigades terrorist who had renounced violence in 1990 and had been given asylum in France because of French concerns about Italian procedures, could not subsequently be extradited when France reversed its former policy.216 Mani v The Governor of Brixton Prison217 did not think the passage of time should prevent extradition because it was referrable to either Switzerland or the United Kingdom. In KM v The Netherlands,218 the Dutch Supreme Court did not allow the fugitive to rely on a general reservation to the European Convention on Extradition 1957 to the effect that surrender would cause “particular hardship” where he was arguing that he should not be surrendered to Germany in relation to a conviction from sixteen years before because he had been resident for so long that he had become integrated into Dutch society.219 While the argument failed, it should be remembered that the Dutch interpretation of Article 6 of the 1957 Convention on the non-extradition of nationals

213

214 215 216 217 218 219

In R v Secretary of State, ex p.Hill [1997] 2 All ER 638 at 662–65, it was held that a delay of ten years where a relevant witness would no longer be available still did not render extradition unjust. In Re Gesugrande, unreported, QBD, CO/1583/95, 30 July 1996, on the other hand, a delay of eight years in an accusation case was on the borderline. See also, Re Vitale, QBD, 145 NLJ 631 (1995), 14 March 1995, where it was held that because it was a conviction case, there was no problem that lapse of time might affect the recollection of witnesses. The Guardian p. 1, 13 NOV 1997. Unreported, 2001/58 Transcript, 9 May 2002. See The Guardian p. 11, 17 FEB 2004. CO/1711/98, unreported, QBD 19 November 1998. Supra n150, at 432. A similar argument was rejected in Vitale, supra n213.

182

Chapter 4

includes those integrated into Dutch society, so the use of the general reservation would have rendered the speciﬁc declaration redundant.220

7.3 Bad Faith Given that common law jurisdictions traditionally tend to operate a rule of noninquiry into the motives of the requesting government,221 and that the Commonwealth Scheme, clause 13(a), provides that a fugitive’s return will be precluded, anyway, if it appears that he will be prosecuted, persecuted or punished on the grounds of his race, religion, nationality or political opinions,222 the power to prevent extradition if it appears the request was made in bad faith or not in the interests of justice will rarely be exercised. It was used in 1990 to challenge a request by Hong Kong. In Re Osman,223 the fugitive alleged that since the Hong Kong authorities had already investigated him some years previously and decided not to prosecute, the request in relation to the same alleged offence must have been at the behest of the Malaysian government, another Commonwealth State, which did not want to hold the trial itself because of the domestic political implications. The court held, though, that once the fugitive admitted that the Hong Kong authorities would have jurisdiction over the serious frauds alleged, the case impugning their motives must fall. In so ﬁnding, the court has adopted a very narrow view of the scope of bad faith; given that every extradition request must ﬁrst satisfy the requirement that the requesting State has the power to prosecute, it is a little difﬁcult to understand how clause 13(b)(ii) might ever be pleaded successfully upon this interpretation. In a subsequent Osman judgment,224 Kennedy LJ held, relying on Woolf LJ in a third Osman case,225 that

220 221 222 223

224

225

See MY, supra n150. In re Arton (No. 1), [1896] 1 QB 108 at 114. And see Chapter Three. See also European Convention on Extradition 1957, Article 3. Unreported, QBD, CO/252/90, MWC, 20 JUNE 1990. In support of Osman’s contention, Warwick Reid, the Hong Kong prosecutor responsible for bringing him to book, has since been sentenced to eight years imprisonment for accepting bribes and, moreover, documents inadmissible on grounds of public interest immunity indicate that his request was not solely motivated by the interests of justice; The Guardian p. 2, 3 DEC 1990. R v Secretary of State for Home Affairs Ex parte Osman, unreported, CO/2496/92, CO/2654/92, QBD, (Transcript: Martin Walsh Cherer), 20 November 1992. Osman reached double ﬁgures in his number of applications for judicial review and habeas corpus – Queen’s Bench Division (Crown Ofﬁce List), CO/2496/92, CO/2654/92, (Martin Walsh Cherer), 30 November 1992; Queen’s Bench Division (Crown Ofﬁce List), CO/2496/92, CO/2654/92, (Martin Walsh Cherer), 20 November 1992; Queen’s Bench Division (Crown Ofﬁce List), CO/1292/92, CO/1310/92, (Marten Walsh Cherer), 22 September 1992; Queen’s Bench Division (Crown Ofﬁce List), [1993] CRIM LR 214, CO/1292/92, CO/1310/92, (Marten Walsh Cherer), 30 July 1992; unreported, Queen’s Bench Division (Crown Ofﬁce List), CO/252/90, Martin Walsh Cherer, 20 June 1990; Queen’s Bench Division (Crown Ofﬁce List), [1992] Crim LR 741, (Marten Walsh Cherer), 28 February 1992; Court of Appeal (Civil Division), (Association), 11 December 1991; Queen’s Bench Division, [1992] 1 All ER 579, 14 November

Restrictions on Return

183

in my judgment the term ‘good faith’ has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose,226 or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protection to which he is entitled by law.

Nevertheless, given also that governments will claim that their evidence is conﬁdential, as was the case in Osman, it would be next to impossible to prove bad faith in abstracto anyway. A unique example of the bad faith defence can be seen in relation to a request for surrender by Hong Kong before July 1st 1997 when it became Hong Kong Special Administrative Region (HKSAR), part of the Peoples Republic of China. Overlapping with arguments concerning specialty, discussed below, the issue concerns whether a transnational fugitive offender could argue that the PRC should not be trusted to honour its commitments to preserve Hong Kong’s way of life for ﬁfty years. The House of Lords, after careful consideration, rejected the claim in Launder 227 that the PRC could not be trusted to uphold the standards that Hong Kong enjoyed prior to July 1st 1997, having regard to the protracted period of negotiations between the British and Chinese governments prior to the handover.228 More speciﬁcally, it held that the Secretary of State had properly considered whether it would have been unjust and oppressive to this fugitive because of the way he might be treated by the new authorities.229

226

227

228

229

1991; Queen’s Bench Division (Crown Ofﬁce List), CO/1508/91, (Marten Walsh Cherer), 7 October 1991; [1992] 1 All ER 122, [1992] 1 WLR 36, 22 May 1991; The Times 17 December 1990, C0/252/90, (Marten Walsh Cherer), 12 December 1990; Queen’s Bench Division (Crown Ofﬁce List), CO/252/90, (Marten Walsh Cherer), 15 November 1990; [1992] 1 All ER 108, [1991] 1 WLR 281, 93 Cr App Rep 202, 14 November 1990; Queen’s Bench Division, (Laidler, The Independent 12 January 1990, Haswell), 21 December 1989; [1990] 1 All ER 999, [1990] 1 WLR 878, 91 Cr App Rep 409, 17 November 1989; The Times 24 December 1988, The Independent 5 January 1989, 133 SJ 121, 21 December 1988; [1988] 3 All ER 173, 90 Cr App Rep 313, 11 May 1988; [1989] 3 All ER 701, [1990] 1 WLR 277, 90 Cr.App.R. 281, 1988 CRIM LR 611. In Re Ramda and Boutarfa, The Independent, 27 June 1997, the court considered but rejected a claim that if extradited to France, one of the fugitives might subsequently be sent to Algeria where he would not obtain a fair trial. R v Home Secretary, ex p.Launder [1997] 1 WLR 839 at 857–59, reversing the Divisional Court, supra n212. Consider the approach of the European Court of Human Rights to diplomatic assurances given to Hungary by the PRC in relation to a request by Beijing – Yang Chun Jin alias Yang Xiaolin v Hungary, App. 58073/00, Second Section, 11 January 2001 – consensually struck out on 8 March 2001. More speciﬁcally, in R v SSHD, ex p.Elliott [2001] EWHC Admin 559, the Divisional Court held that reversing the burden of proof on a speciﬁc issue did not constitute a ﬂagrant denial of fair trial.

184

Chapter 4

Closely related to bad faith is abuse of process. Not part of the London Scheme for Extradition within the Commonwealth, it can be read into extradition laws that incorporate general human rights guarantees. It allows the transnational fugitive offender to challenge the lawfulness of her/his detention. In Re Asliturk,230 the request by the Turkish government was held to be motivated by jealousy because the media were speaking of her a future Prime Minister, and so the High Court discharged her. In conclusion, any properly used additional protections for fugitive offenders are to be welcomed. That it was thought necessary to include clause 13(b) in an extradition system operating among members of the Commonwealth who generally trust each other, and the particular experience with Hong Kong, show that it might usefully be inserted in other bilateral and multilateral arrangements.

8. Plea Bargaining Most crime is cleared up by confessions from those involved and the police often offer leniency in the courts as a trade-off for information. It was inevitable, therefore, that this should eventually affect an extradition request. The facts of Geisser v United States231 reveal the special problems of plea-bargaining in this area. The fugitive had ﬂed Switzerland having been convicted of murder. In the United States she gave aid to the police in breaking up a drugs ring for which she was given the assurance that the U.S. would “use its best efforts” to prevent her rendition to Switzerland. Unfortunately for the accused, the Swiss government was not party to the agreement and requested her extradition. The magistrate agreed to this request, but on an application for a writ of habeas corpus, District Judge Mehrtens held her constitutional rights had been infringed, for the U.S. government had not honoured the plea-bargain.232 The Court of Appeals vacated this decision, but told the government to try again to see if the Swiss would withdraw their request.233 Having tried and failed, the U.S. government again sought to quash the writ for habeas corpus, but the District Court and Court of Appeals held its efforts had been insufﬁcient and set out new guidelines to be met.234 However, in the Court of Appeals, Coleman J dissented,235 holding that the government had an obligation under the U.S.-Swiss Extradition Treaty which it could not negotiate away. Only in 1980, after further discussions between the two governments without obtaining the withdrawal of the Swiss request, did the Court of Appeals hold that the U.S. 230 231 232 233 234 235

[2002] EWHC 2326 at paragraph 21. 513 F.2d 862 (1975); 414 F.Supp 49 (1976); 554 F.2d 693 (1977); 627 F.2d 745 (1980). Unreported. See 61 INT’L L REP.443 at 444. 513 F.2d 862 (1975). 414 F.Supp 49 (1976); 554 F.2d 693 (1977). Supra n234, at 707 et seq.

Restrictions on Return

185

government had done sufﬁcient for extradition to be allowed, that is it had used its ‘best efforts’.236 However, the diplomatic embarrassment caused to the United States should dissuade any future plea-bargains in extradition cases. Considering Geisser had been convicted of murder, it should have been obvious that the Swiss government would not give up its extradition request, especially since the information Geisser had provided had only helped the U.S. law enforcement authorities, not the Swiss. Moreover, as Coleman J explains,237 the United States was obligated by its treaty with Switzerland to extradite if Switzerland fulﬁlled all the requirements. Domestic dealings between the police and the fugitive could not override the international duties in the treaty. It is evident that any plan to plea-bargain over extradition in future ought to involve the potential requesting State at an early stage; with the growth in cross-frontier crimes it may well be that a fugitive’s information will be of assistance to more than one State and that a bargain will not be wholly inappropriate. However, if no negotiations take place with the requesting State, then the extradition should go ahead to honour the treaty, leaving the fugitive with a right to sue for failure to fulﬁl the plea-bargain. International agreements must be upheld in the interests of greater international co-operation in the enforcement of criminal laws.

9. Specialty238 The content of this principle, accepted by most States as part of the rules of extradition,239 is that a fugitive should only be tried in the requesting State for those offences for which he was surrendered.240 Any offence not disclosed in the request, 236 237 238 239

240

647 F.2d 745 at 755 (1980). Supra n235. Also known as ‘speciality’. E.g. Melia v United States, 667 F.2d 300 (1981). The old Anglo-Irish simpliﬁed scheme did not include the principle of specialty before the Irish Extradition (Amendment) Act 1987, but under s3 the Irish Minister of Justice is empowered to apply it as necessary (see also, s72 Irish Criminal Justice Act 1991 and the Irish SI 1994 No. 221). There was no equivalent in the former British legislation until 1994 – see now, s72(3) Criminal Justice Act 1993 and SI 1994 No. 1952. (See generally, FORDE, THE LAW OF EXTRADITION IN THE UNITED KINGDOM, 1995, pp. 90 and 124). Considering that the former Anglo-Irish system has been based on the European Extradition Convention since 1965, this delayed implementation was odd, for Art. 14 thereof implements the principle of specialty. See O’Higgins, The Irish Extradition Act 1965, 15 INT’L & COMP. LQ 369 (1966). For a view that the principle of specialty is not a rule of customary international law and is dependent on a speciﬁc provision to that effect in the extradition arrangements, see In re McFadden, per Forbes J, The Times, 13 MAR 1982. Even if one assumed that there was here an irreconcilable conﬂict between a domestic statute and the principles of international law, namely the speciality rule . . ., it seems to me that this court would be bound to give effect to the statute. See also The State (Jennings) v Furlong, [1966] IR 183 per Hendry J. A treaty may well prevent incarceration for a sentence imposed pre-ﬂight and not included in the

186

Chapter 4

which occurred before surrender should, thus, no longer be capable of prosecution.241 In R v MacDonald,242 for example, the fugitive was granted habeas corpus because following his surrender by Australia for trial in relation to narcotics offences, he was imprisoned under a robbery conviction which had not formed part of the extradition request. White J. held that domestic Canadian law had to be applied so as to respect Canada’s international commitments and the comity of nations.243 In Daha Singh Lahoria v Union of India,244 the Indian Supreme Court held that without the consent of the requested State, the Indian courts could not prosecute for an offence not listed in the extradition request. Effectively, the fugitive should receive immunity through the extradition laws. However, the principle of specialty is not centrally concerned with protecting the fugitive’s rights. While it prevents a fugitive being requested for one offence and tried for another, it upholds the contractual nature of the agreement between the two States, in that the requesting State has to accept that the requested State has granted extradition for the speciﬁed offences and no others. Furthermore, the fugitive’s rights are secondary to this inter-State relationship. While the fugitive can assert violations of the principle of specialty in any trial in the requesting State, the traditional view is that the protection exists only to the extent that the requested State so insists.245 Furthermore, if having left the requesting State after extradition, the transnational fugitive offender subsequently returns to the requesting State of his own volition, then the specialty protection will lapse.246 A similar concept was ﬁrst used in the Franco-Luxembourg treaty of 1844,247 but it was ﬁrst formulated in terms that would be understood today in the FrancoSaxon treaty of 1850.248 However, its precise scope is little understood. On a strict analysis, it would mean that the fugitive could only be tried for the precise offences for which he was surrendered. On one reading, Article 38 of the Swiss Law on International Judicial Assistance in Criminal Matters takes this stance.249

241

242 243 244 245

246 247 248 249

requisition for other offences with which the fugitive is only charged. Thus, in R v Uxbridge Justices, ex p.Davies, [1981] 1 WLR 1080, the Divisional Court released a returned fugitive who had been imprisoned for non-payment of a ﬁne imposed before he ﬂed to the U.S.A., but which had not been included as a ground for requesting his return. See Art. XII of the former Anglo-U.S. Extradition Treaty in SI 1979 No. 2144. See also Spanish-German Extradition Treaty Case, [1925–26] Ann.Dig.308 and note at 309, esp. Gerland. The principle has no relevance to civil proceedings – see Re Ditfort, ex p.Deputy Commissioner of Taxation, 87 INT’L L REP.170 at 190 (Australia, Fed.Ct). 101 INT’L L REP.281. Supra n242, at 288. 125 INT’L L REP.530 at 535–36 (Indian S.Ct, 2001). Najohn v United States, 785 F.2d 1420 at 1422 (1986); CvH et al. v The Netherlands 100 INT’L L REP.404. Cf. MacDonald, supra n242; United States v Puentas 50 F.3d 1567 (1995). On whether the fugitive can plead specialty in any trial following surrender, generally, see CHINKIN, THIRD PARTIES IN INTERNATIONAL LAW (1996), esp. pp. 13–15. R v Parisien 92 INT’L L REP.683 (Canadian Supreme Court). See BILLOT, TRAITE DE L’EXTRADITION, at pp. 476 et seq. Supra n247, at p. 552. 20 MAR 1981, 20 INT.LEG.MAT.1339 (1981), as amended 4 OCT 1996 (supplied by the Federal

Restrictions on Return

187

(1) A fugitive may be extradited only on condition that the requesting State: (a) shall neither prosecute nor sentence nor re-extradite him to a third State for an offence committed prior to his extradition and for which extradition was not granted.

This view, though, would mean that the courts of the requested State would interfere excessively in the criminal processes of the requesting State.250 Further, it misconstrues the nature of the extradition hearing. The extradition court in applying an in abstracto analysis of the double criminality requirement looks to see if an offence would have been committed in the requested State on the facts alleged by the requesting State. It is the facts of the case that are all important. Both civil law and common law precedents are to the effect that specialty allows the fugitive to be prosecuted for any charge made out by the facts on which surrender was ordered.251 Thus, a serious fraud may make out charges of deception and theft on the facts, both of which charges would be open to prosecution upon the fugitive’s surrender. The following developments taking place in extradition law with regard to specialty are aimed to relax the rule so as to allow a wider range of offences to be prosecuted. It is part of the overall trend that sees extradition as a means of improving international co-operation in law enforcement at the expense of the fugitive’s traditional rights. In more recent agreements,252 the requesting State has been permitted to charge any other extraditable offence as well with the consent of the

250 251

252

Ofﬁce for Police Matters, Bern) – the text is a combination of both translations. See also the Decree on International Mutual Assistance in Criminal Matters, 24 FEB 1982 as amended 9 DEC 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern). See Najohn, supra n245, at 1423. See Decorte v Société Anonyme Groupe d’Assurance Nedlloyd et al. (Belgian Cour de Cassation, 2eme) 69 INT’L L REP.216 (1971); In re Davidson, (1976), 62 Cr.App.R.209; and In re Nielsen, sub.nom. R v Chief Metropolitan Magistrate, ex p.Government of Denmark, (1984), 79 Cr.App.R.1 at 14, per Robert Goff LJ. Quaere, United States v Rauscher, 119 US 407 (1886); see generally, Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of U.S. v Rauscher, 31 VA.J INT’L L 71 (1993). See clause 20 of the London Scheme for Extradition within the Commonwealth, 2002; the European Union Convention Relating to Extradition between the Member States, 1996 OJ C 313, provided in Article 10 that other offences shall be prosecutable if they either will result in no loss of liberty or the fugitive waives his rights – see also the Explanatory Report of 26 May 1997, 1997 OJ C 191; and, the European Union also concluded a Convention on Simpliﬁed Extradition to expedite mutual assistance (1995 OJ C 78), Article 9 of which dealt with the specialty issues surrounding simpliﬁed extradition. The EAW, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), provides in Article 27.1 for presumed consent by the surrendering State. Article 27.1 Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notiﬁcation, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. See also, Najohn, supra n245.

188

Chapter 4

requested State, although knowledge of the particulars at the time of the initial request may prove a bar. It should be noted that it is limited to other extraditable offences, not just any crime, and that the consent of the requested State is essential, reinforcing that specialty goes to the relationship between the parties to the treaty as much as to the protection of the fugitive. Nevertheless, another limitation on the strict understanding of specialty is seen in the power of the requesting State to take into account any other offence with the consent of the fugitive, who may have an interest in wiping the slate clean. This development places the principle of specialty ﬁrmly in the list of those provisions designed solely to protect the fugitive, given that supporting consent from the requested State is not also required. While it may be a sensible progression, it does seem to go against the spirit of the principle of specialty which is to treat it as part of the bargain between the States, as well.253 Specialty also affects re-extradition, that is, where a person has been extradited from State A to State B, State C then puts in a request with respect to crimes allegedly committed before the ﬁrst extradition. In such cases, State A may need to consent to the surrender from State B to State C.254 In R v SSHD and others,255 the Divisional Court held that the Secretary of State should seek the approval of France before re-extraditing the accused to the United States: It seems to me that, having regard to principles of international comity, ﬁrstly the Secretary of State would not wish that the applicant should be returned to the United States against the wishes of the French government; equally the United States government would not wish to cause the Secretary of State the embarrassment of acting against the wishes of the French government; and the French government for its part would not wish, except for sound reasons, to refuse consent to re-extradition for a serious offence committed by the applicant in the United States which has come to light since it originally returned the applicant to the United Kingdom in 1993.

Finally, specialty was raised frequently in cases involving requests by the government in Hong Kong before the handover to the PRC on July 1st 1997. The argu253

254

255

Cf. German-Swiss Extradition Case, (FRG, Federal Supreme Court), 61 INT’L L REP.470 (1968), in which the court held that the fugitive’s previous offences could be taken into account in assessing the appropriate sentence. In Nedlloyd, supra n251, at 217, the court held that the accused was entitled to waive his privilege under the principle of specialty and that no reference need be made in such circumstances to the requested State – see also, Article 10 of the European Union Convention relating to Extradition between Member States, supra n252. Of course, it might equally be surrender to the International Criminal Court or one of the ad hoc international criminal tribunals at The Hague or Arusha. Re-extradition rules might not automatically apply to ‘surrender’, but treaties could be drafted explicitly on the matter. the Anglo-U.S. Extradition Treaty of 2003 (Cm.5821) includes “surrender” in the specialty clause, Article 18. However, while that would cover the International Criminal Court, it is questionable whether obligations imposed through Ch.VII of the United Nations Charter could be subservient to a bilateral treaty provision. CO/1142/96, unreported, 31 July 1996.

Restrictions on Return

189

ment was that specialty would be violated because the transnational fugitive offender would effectively be extradited to a third State, that is, the PRC, on July 1st 1997. For a variety of reasons, the specialty argument was ultimately found to be ﬂawed in all cases. In Osman (No. 3)256 and Lee,257 the Divisional Court held that specialty could only relate to the present requesting State and it was not open to the court to gaze into the future, for to act otherwise would “drive a coach and horses through the principle of comity and reciprocity”. The House of Lords in Launder,258 however, was able to take into account developments up to early 1997, where Hong Kong had entered into several arrangements with States that even after the transfer to the PRC, persons extradited to Hong Kong would not be surrendered to places outside the jurisdiction of Hong Kong. Two United States cases, Lui Kin-Hong259 and Oen Yin Choy,260 held the principle of specialty was wholly inapplicable because any transfer from the HKSAR to the PRC would not amount to re-extradition.261 That the takeover by the PRC was feared by transnational fugitive offenders being returned to Hong Kong was understandable, but the effective block on most extraditions to the former colony would have been too disruptive of international criminal law and the comity of nations.262

10. Immunity and Amnesties The Pinochet263 decisions make it clear that immunity can be a defence to extradition. The transnational fugitive offender claims immunity from prosecution by virtue of Article 31 of the 1961 Vienna Convention on Diplomatic Relations or similar measure.264 Before Pinochet, the position had not been clear. The leading authority was Ex parte Teja.265 Teja had been sought by the Indian government from the U.S.A. and Costa Rica prior to his arrest in the United Kingdom. As part of his 256 257 258 259 260 261

262 263

264

265

Supra n212, at 131. R v Governor of Pentonville Prison et al., ex p.Lee [1993] 3 All ER 504 at 510–11. Supra n227, at 859 et seq. United States v Lui Kin-Hong 110 F.3d 103 (1997). Oen Yin Choy v Robinson 858 F.2d 1400 at 1403–04 (1988). The United States is one of those States which has entered into an agreement that no-one extradited to Hong Kong will be surrendered to a place outside the jurisdiction of HKSAR – Launder, supra n227, at 861–63. See Oen Yin Choy, supra n260, at 1404. R v Bartle and the Commissioner of Police for the Metropolis and others, ex p.Pinochet [1998] 4 All ER 897, [2000] 1 AC 61 (Pinochet 1); R v Bartle and the Commissioner of Police of the Metropolis, ex p.Pinochet [1999] 2 All ER 97 (Pinochet 3). 500 UNTS 95. The stationing of military overseas usually only takes place once a Status of Forces Agreement has been negotiated that provides that prosecution for crimes will take place in the sending State and granting immunity from the jurisdiction of the domestic courts of the receiving State. United States military working in Colombia were accused of involvement in drug smuggling – BBC News website 4420329.stm, 2005/04/07 12:18:48. Supra n208.

190

Chapter 4

defence, he had claimed that he had been appointed economic adviser to the Costa Rican government and was about to be appointed their economic counsellor to Switzerland. One of the problems with this line of argument was that there was no Costa Rican embassy in Switzerland and the Swiss government denied any knowledge of his impending accreditation. As a fall back position, he also claimed he held the same status for the government of El Salvador. The Divisional Court rejected the claim of diplomatic immunity by strictly interpreting Article 40 of the Vienna Convention which only grants protection to diplomats in third States when they are on their way between their posting and their home State.266 Teja was travelling on a return ticket from Geneva to London, he was not in transit from Switzerland to El Salvador. Even after Pinochet, if Article 40 is not satisﬁed, then the applicant will not be granted immunity from extradition.267 The English Divisional Court rejected a claim for immunity on procedural grounds, following Teja, in R v Governor of Pentonville Prison, ex parte Osman (No. 2),268 implicitly recognising, however, that if diplomatic status had been proven, then extradition should be refused. Pinochet shows that the former president would have been safe from extradition if his acts had fallen within his functional immunity.269 In Re Marcinkus, De Strobel and Mennini,270 the Vatican City Court of First Instance, relying on Article 11 of the Lateran Treaty of 1929, refused a request from Italy for the surrender of the three because the case related to their work as directors of the Institute of Religious Works, “a central body of the Catholic Church”, and as such they were exempt from interference by the Italian government. It would be surprising to ﬁnd that States accorded less protection from criminal prosecution to diplomats when they are being requested by another State than they do to diplomats for crimes committed within the jurisdiction of the receiving State. Furthermore, there may well be political considerations to take into account.

266 267

268

269

270

Cf. R v Guildhall Magistrates Court, ex p.Jarrett-Thorpe, The Times, 5 OCT 1977, per Lawton J. In S v Berlin Court of Appeal and District Court of Berlin Tiergarten, noted by Fassbender in 92 AM.J.INT’L L 74 (1998), the German Federal Constitutional Court took this one stage further and refused to grant diplomatic immunity to the former Syrian Ambassador to the former German Democratic Republic with respect to a bomb explosion in the former West Berlin following reuniﬁcation The Times, 24 DEC 1988. See also, Kassim-Momodu, Extradition of Fugitives by Nigeria, 35 INT’L & COMP. LQ 512 at p. 515 (1986). Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium), ICJ 2002, General List No. 121. See Cassese, When May Senior State Ofﬁcials be Tried for International Crimes? Some Comments on the Congo v Belgium Case, 13 EJIL 853 (2002); Wirth, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v Belgium Case, 13 EJIL 877 (2002); Wickremasinghe, Arrest Warrant of 11 April 2000 (DRC v Belgium), Preliminary Objections and Merits Judgment of 14 February 2002, 52 INT’L & COMP.LQ 775 (2003); McLachlan, Pinochet Revisited, 51 INT’L & COMP.LQ 959 (2002). Turns, Certain Criminal Proceedings in France (Republic of Congo v France), Provisional Measures, Order of 17 June 2003, 53 INT’L & COMP.LQ 747 (2004). 100 INT’L L REP.603 at 607.

Restrictions on Return

191

The Achille Lauro affair highlights this issue.271 Members of the Palestine Liberation Front took control of the Italian ship, the Achille Lauro, while it was in Egyptian territorial waters. After several days sailing around the eastern Mediterranean, during which time a U.S. national was murdered, the Palestinians returned to Egypt. The sea-jacking seemed to have been organised from on shore by Abul Abbas who negotiated the end of the affair. Having arrived in Egypt, the Egyptian authorities placed them on a plane, alleged to be on a State mission, which then set off for Tunis. It was intercepted by U.S. Navy planes and diverted to an air base in Sicily. The Italian authorities then arrested the four sea-jackers and the U.S.A. sought their extradition and that of Abul Abbas.272 The only point of concern in relation to diplomatic immunity is the case of Abul Abbas.273 Not only did he remain with the Egyptian plane which the Egyptians claimed enjoyed extra-territorial status, but the Italian government claimed he had diplomatic immunity. He had been granted an Iraqi passport which set out his status as a leading member of the PLO, but he was not a representative of Iraq and nor was he accredited to Italy. At best, even granting him diplomatic status, he fell within Article 40 and, at the time, he was not travelling between his posting and his home State. Nevertheless, the Italians allowed him to leave for the then Yugoslavia on the ground that diplomats could not be questioned or extradited. The decision was blatantly political, made in order to preserve good relations with the Arab world; the cynicism is evident from the fact that at the trial of the sea-jackers he was tried in absentia and ‘sentenced’ to life imprisonment. On the other hand, as part of the Oslo Peace Accords, Israel granted him immunity, too.274 Closely associated with immunity in this sense, States will sometimes grant an amnesty in order to achieve a peace deal.275 Members of the IRA who had escaped from prison and found refuge in the United States were granted a royal pardon as part of the Good Friday peace process in

271

272 273 274

275

See McGinley, The Achille Lauro Case: A Study in Crisis Law Policy and Management, at pp. 323 et seq. in BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM, (1988), and CASSESE, TERRORISM, POLITICS AND LAW, esp. at pp. 95–96, (1989). Cf. United States v Noriega 746 F.Supp 1506 (1990); 808 F.Supp 791 (1992); 117 F.3d 1206 (1997); cert.den. 523 US 1060 (1998). See The Guardian for October 8 to 22 1985. CASSESE, supra n271, at p. 43. The Guardian p. 7, 17 APR 2003. He was later captured by coalition forces after the fall of Baghdad. With the danger that immunity equals impunity. See Colombia’s 2005 peace process under President Uribe, where Amnesty International was especially critical – BBC News website 4201278.stm, 2005/09/01 17:22:49. NB. The Inter-American Court of Human Rights has held that amnesties contravene the obligations States have accepted under the American Convention on Human Rights – see, for instance, Paniagua Morales et al. Case, Judgment of March 8, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 37 (1998), paragraphs 169–75, esp. 173. See also, paragraph 18 of Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004)

192

Chapter 4

Northern Ireland.276 The leader of the Colombian paramilitary group, the AUC, was not surrendered to the United States in relation to drug crimes because he was central to the peace process.277

276 277

The Guardian p. 7, 27 DEC 2000. BBC News website 4082824.stm, 2005/06/10 23:37:13.

Chapter 5 The Political Offence Exemption He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty he establishes a precedent that will reach to himself.1 Why not ask yourself, Miss Feletti, what sort of democracy requires the services of dogs such as these? I’ll tell you. Bourgeois democracy which wears a thin skin of human rights to keep out the cold, but when things hot up, when the rotten plots of the ruling class fail to silence our demands, when they have put half the population on the dole queue and squeezed the other half dry with wage cuts to keep themselves in proﬁt, when they have run out of promises and you reformists have failed to keep the masses in order for them; well then they shed their skins and dump you, . . ., and set their wildest dogs loose on us all.2

1. Introduction The political offence exemption used to be the “hot issue” of extradition law.3 The wars in the former Yugoslavia and Rwanda along with the attacks of 11 September 1

2 3

From the Complete Writings of Thomas Paine, vol.2, at p. 588 – P. Foner, ed., 1945. Cited in United States v Alvarez-Machain, 504 US 655 at 688 (1995), 112 S.Ct 2188 (1995), 119 L.Ed 2d 441 at 467 (1995). Dario Fo, Accidental Death of an Anarchist, trans. Richards and Hanna, Methuen, 1980. Evans, International Procedures for the Apprehension and Rendition of Fugitive Offenders, [1980] A.S.I.L.PROC.244, (74th Annual Meeting).

194

Chapter 5

2001 have shifted the boundaries, however. The political offence exemption is now looked upon as a threat to international stability and a hindrance to the so-called war on terror. Whether this conclusion is justiﬁed will be considered below, but it cannot be denied that the political offence exemption has less importance to a study of international criminal law than it did even ﬁfteen years ago.4 Nevertheless, the political offence exemption is still part of extradition law and is the most interesting issue. One of the principal reasons given for the exemption in the nineteenth century was that it would permit the requested State to remain aloof from the internal affairs of the requesting State. However, whilst hiding behind the court’s decision that the offence was of a political character, the requested State in fact has always passed judgment on the requesting State,5 cast aspersions on the impartiality of its judiciary and effectively sided with the fugitive. In June 1978, for example, former President Mobutu of the former Zaire criticised Belgium for granting asylum to some of his political adversaries, “considering this act as an effective support to those willing to overthrow him and hence, as a hostile act”.6 The exemption is very controversial and its application in a particular case may have serious diplomatic consequences. According to Stein,7 the objective of the exemption is twofold, although this may not be clear from the wording of the provision in treaties or domestic legislation. [It] mixes inseparably the humanitarian concern for the fugitive on the one hand and on the other the politically motivated unwillingness of the requested State to get involved in the international (sic.) political affairs of the requesting State.8

It may be that this conceptual confusion is part of the reason for the problems raised by the operation of the exemption. However, in attempting to analyze the exemption within a legal framework, and then circumscribe it within some legally acceptable conﬁnes, it may be that all that is achieved is to provide the courts with a legal cloak behind which they may hide their political decisions. Given that the courts 4

5

6

7

8

The strongest proof is to be found in the United Kingdom Extradition Act 2003 that no longer contains an exemption for those requested for crimes of a political character. While requested State and requesting State bear their ordinary meanings, a third term, State of dispute, should be understood as the State against which the fugitive, for ideological or political reasons, is in conﬂict. This may or may not be the requesting State. VAN DEN WIJNGAERT, THE POLITICAL OFFENCE EXEMPTION TO EXTRADITION: THE DELICATE PROBLEM OF BALANCING THE RIGHTS OF THE INDIVIDUAL AND INTERNATIONAL PUBLIC ORDER, p. 204, n1071 (1980); hereinafter, WIJNGAERT. See also, Ryan, 100 INT’L L REP.616, Note at 622 (Belgian Court of Appeal of Brussels); Russian protests at failure to extradite Chechen leader Zakaev 8 DEC 2002 .; Egypt, as well, complained that the United Kingdom was a refuge for members of a terrorist organization, al-Gama’at al-Islamiya – The Guardian p. 6, 28 SEP 2001. DIE AUSLIEFERUNGSAUSNAHME BEI POLITISCHEN DELIKTEN (1983); English summary, pp. 377–81. Supra n7, at p. 377; it should probably read “internal political affairs”. See also p. 380.

The Political Offence Exemption

195

will still deal with political offenders much as they wish, though, then some sort of analysis of the exemption is essential in order to provide for more informed criticisms of the decisions and to provide the judges with appropriate guidelines for the future. As will be seen below, the exemption is pleaded by a wide variety of fugitives, but it comes to the fore most controversially in requests for alleged terrorists.9 Of course, ‘terrorists’ come in many guises and their actions may prove more or less reprehensible depending upon the court before which they appear. Indeed, the judges’ decisions often seem to owe more to foreign policy than to legal reasoning.10 In the past, political offence decisions have been based upon whether the fugitive was from the former Soviet bloc,11 whether the requesting State was an ally,12 support for the fugitive or his group in the requested State,13 encouraging a peace process,14 the usefulness of the transnational fugitive offenders to the intelligence services,15 even economic interests.16 ‘Terrorists’ are hard cases within the exemption, and hard cases make bad law. Terrorism is unlikely to disappear in the near future, however, so cases where the limits of the exemption are tested will continue to arise. Yet, as was stated above, to see the exemption as only applying to ‘terrorists’ would be seriously misleading. Some of the other categories of offender who claim to be within the scope of the exemption are closely related to terrorists, but, even then, many other factors apply to such cases so as to render them distinct. The closest ‘ally’ of the terrorist must be those engaged in an armed conﬂict of some description. However, in such a case international humanitarian law may apply as 9

10

11 12 13

14

15

16

E.g. The Abu Daoud Affair. Carbonneau, The Provisional Arrest and Subsequent Release of Abu Daoud by French Authorities, 17 VA.J INT’L L 495 (1977); Riggle, L’Affaire Abu Daoud: Some Problems of Extraditing an International Terrorist, 12 INT’L LAWYER 333 (1978); [1977] 1 GAZ.PALAIS 105. See the French government’s release of two Iranians wanted by Switzerland, according to the French Prime Minister’s ofﬁce, for “reasons connected to [French] national interests.” – The Guardian p. 8, 1 JAN 1994. R v Governor of Brixton Prison, ex parte Kolczynski et al., [1955] 1 QB 540. Cheng v Pentonville Prison Governor, [1973] AC 931. Eg. The Provisional IRA in the Republic of Ireland during the 1970s. See LODGE, TERRORISM A CHALLENGE TO THE STATE, Ch. 6, esp. at pp. 151–52 (1981); hereinafter, LODGE. See also, Afghanistan’s refusal to hand over Osama bin Laden – The Guardian p. 17, 28 JUL 2000; p. 18, 31 MAR 2001; p. 14, 15 JUN 2001. According to The Guardian on 22 SEP 2001 (p. 7), Afghanistan claimed that surrendering bin Laden would be “an insult to Islam”. Colombia refused to extradite the head of the AUC paramilitary group to the United States with respect to drug smuggling charges because his presence was central to his organization’s disarmament – The Guardian p. 17, 18 DEC 2004; BBC News website 4296484.stm, 2005/09/30 08:56:03; cf. 4318036.stm, 2005/10/07 07:11:02; 4397084.stm, 2005/11/01 16:57:54; 4445080.stm, 2005/11/17 11:42:11. See also the way Israel accepted the return to Gaza of one of those involved in the Achille Lauro sea-jacking – The Guardian p. 19, 29 APR 2000. Italian neo-fascists allegedly protected in London by MI6 – The Guardian G2 pp. 6–7, 4 AUG 1998. Abu Daoud affair, supra n9. Cf. L’Affaire Gouvernement Suisse, Req.no. 156490, [1995] AJDA 56 at 60, (20 JAN 1995).

196

Chapter 5

well, adding a further dimension to the decision beyond that for the simple terrorist.17 The so-called ‘war on terror’ has blurred this distinction even further. Also related is the refugee seeking protection from persecution, rather than prosecution. Refugee status under the Convention Relating to the Status of Refugees 195118 is for those ﬂeeing persecution, not prosecution, but it is possible that criminal laws might be formulated in such a way that they persecute a certain group based on their political views.19 Moreover, into which of those categories listed above a fugitive is deemed to fall may, in the end, depend only on where and when the crime took place. There is a tremendous degree of discretion. More removed from terrorists, war criminals have pleaded the defence in the past, too,20 bringing yet another facet to the exemption. As civilians are more and more subjected to the direct hostilities of armies, it becomes more likely that requests for the extradition of fugitive war criminals will be made once those hostilities cease, again testing the limits of the exemption’s protection. To that extent, the creation of the ad hoc international tribunals for the former Yugoslavia21 and Rwanda22 and the International Criminal Court23 would suggest that States wish, in part, to avoid alleged war criminals relying on the political offence exemption during extradition hearings, since all three eschew extradition as the method of surrender and, thus, the political offence exemption, too.24 Finally, a very disparate group has, on occasion, pleaded the exemption; their offences have a political ﬂavour only because the government of the requesting State has taken an interest in the individual’s affairs, or those of his group, distinct

17

18 19

20 21

22

23

24

Even if the minimum threshhold of violence required by Protocol II to the Geneva Conventions, 1125 UNTS 609 (1979), 16 INT.LEG.MAT.1442–49 (1977), has not been reached, there is an argument that special rules should still govern situations of serious tension beyond mere terrorism: see KALSHOVEN, CONSTRAINTS ON THE WAGING OF WAR, 1987, pp. 137–39; Gasser, A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct, 262 INT’L REV.RED CROSS 38 at pp. 51–53. 189 UNTS 137. NB. Applicants for refugee status are excluded if they have committed a serious non-political crime before entering the State in which they seek refuge – Article 1F(b) 1951 Convention. See Chapter 8 below. See Chapter Seven, below. The Statute of Tribunal was presented to the Security Council in The Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (hereinafter, Report), 32 INT.LEG.MAT.1159 (1993). The Statute was adopted by the Security Council in Resolution 827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993). The Rules of Procedure and Evidence (hereinafter, Rules) are now at Revision 37 – IT/32/Rev.37. UNSC Res.935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994). Rules of Procedure and Evidence, ITR/3/Rev.1 (1995), entry into force 29 June 1995. Done at Rome, 17 July 1998, 37 INT.LEG.MAT.999 (1998) – as corrected by the procés-verbaux. See CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002. A claim that the crime was political might still be pleaded at the trial before the Tribunal or proposed Court, but the receptiveness of the judges to such claims is far from guaranteed.

The Political Offence Exemption

197

from the crime on which the extradition request is based.25 In such cases, while the individual’s crime is purely common, the offender or his group have acquired public notoriety and incurred government disfavour and so seek protection. Since the political offence exemption is usually drafted in very vague terms in legislation and treaties, and since no authoritative or comprehensive deﬁnition has yet emerged, it is inevitable that difﬁcult cases will continue to arise. The very term ‘political offence’ should have forewarned the nineteenth century drafters of the impending conﬂicts and disputes, because for every ten people there will always be at least a dozen different interpretations of ‘politics’! Indeed, the very choice of the term indicates that politicians wanted to leave the judges with a large degree of discretion, partly because it would allow them to distance themselves from sensitive decisions. Therefore, this chapter is premised to some extent on the suggestion that the exemption has been extended too far and that it has been stretched to include too many categories of fugitive. As such, it is currently too wide26 and it needs to be circumscribed or, possibly, even abolished. To understand the best way to meet the problems raised by the exemption, speciﬁc criticisms of certain national laws and a more general criticism of the political offence exemption will be discussed. A variety of solutions are proposed to make the exemption more applicable to present-day needs. Finally, regard will be had to methods by which States might be encouraged to ensure that the fugitive is brought to justice. First, though, the origins of the exemption need to be set in context – only by understanding the development of the exemption can one truly appreciate the original intentions behind its inclusion in extradition treaties and so see how far it is still relevant and how far it should still be bound by its own roots.

2. History The origins of the political offence exemption help to explain the difﬁculties and conﬂicts that arise in its application today. The doctrine ﬁrst entered international extradition law in 1834 in the Franco-Belgian treaty of that year.27 It had been inspired by the changing mood in Europe following the French Revolution of 1789 and the new independence of Belgium from the Kingdom of the Netherlands. Within a very short time, the clause was incorporated in the extradition laws of the civil law and common law countries. The perceptions of the nineteenth century law-makers were founded in the political and diplomatic climate of that period.

25

26 27

E.g. Sindona v Grant 619 F.2d 167 (1980); R v Pentonville Prison Governor, ex parte Budlong and Kember, [1980] 1 WLR 1110; T v Swiss Federal Prosecutor’s Ofﬁce, 72 INT’L L REP.632. See WIJNGAERT, supra n6, at p. 204. 22 B.F.S.P.223.

198

Chapter 5

Europe was in turmoil, striving towards democracy and self-determination for national groups, as can be seen in the revolutions of 1848 and the emergence of Italy and Germany as nation-States. On the other hand, the United Kingdom, as an island, stood aloof from this Continental upheaval, seemingly a haven of liberality for European revolutionaries such as Kossuth, Garibaldi and Mazzini.28 [During] the nineteenth century those who used violence to challenge despotic regimes often occupied the high moral ground, and were welcomed in foreign countries as true patriots and democrats.29

It is against this background that the political offence exemption must be understood. Europe was moving away from autocratic empires, often with violent consequences.30 However, it was those committed to establishing liberal-democratic governments who were protected.31 To try and apply the doctrine to the late twentieth century, especially to the issue of transnational terrorism, results in the confusion and injustice so prevalent. The exemption was aimed to protect people ﬁghting for liberal democracy, yet the same language is still applied today to persons intent on destroying liberal democracy. It is evident, therefore, that the exemption may be in need of reassessment and it may need to be redrafted, in so far as this is possible. To paraphrase Jefferson,32 extradition law cannot be made to wear the same clothes it wore in its infancy. As Wijngaert explains. [A] certain discrepancy has developed between the rule as it is enunciated and its practical application, which in many cases, may provide the impression of a real or apparent arbitrariness in the decision-making. Therefore, the question should be examined 28

29 30

31 32

Karl Marx was also based in the United Kingdom. When the police investigated him, they placed an ofﬁcer in hiding in a room where Marx was to hold a meeting – the ofﬁcer’s report adjudged him to be no threat because the meeting had been held in German! (I believe I am indebted to Lady Hazel Fox of the British Institute of International and Comparative Law for this anecdote). Per Lord Mustill in T, infra n87, at 867. See OPPENHEIM, INTERNATIONAL LAW (1905, 1st ed.) Vol. 1, p. 325; PORTER, THE REFUGEE QUESTION IN MIDVICTORIAN POLITICS (1979). See also Quinn v Wren, [1985] ILRM 410 (Supreme Court) where Finlay CJ held the accused, a member of the Irish National Liberation Army (INLA), could be extradited to the U.K. The political offence defence was rejected partly because, although the crime had been committed on behalf of the INLA, that organisation wished to impose by force an all-Ireland workers republic, contrary to the Irish Constitution which provided the ultima ratio of the defence in the ﬁrst place. This Court cannot, it seems to me, interpret an Act of the Oireachtas as having the intention to grant immunity to a person charged with an offence, the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and of the organs of State established thereby. (Finlay C.J. at 419) NB. The INLA was not ﬁghting for a liberal democracy. Cf. Pyle, infra n263. See Dwomah v Sava 696 F.Supp 970 at 976 (1988). From a letter to a friend: “I am not an advocate for frequent changes in laws . . . [but] we might as well require a man to wear still the coat which ﬁtted him when a boy as civilised society to remain ever under the regimen of their barbarous ancestors”. The inscription can be seen on the walls of the Jefferson Memorial in Washington DC.

The Political Offence Exemption

199

as to whether the political offence should not be explicitly re- evaluated and whether the various tendencies which presently have developed in an implicit manner should not be collected into a global and coherent legal framework. Such questions can only be answered on the basis of an analysis of the sense and function of the political offence exception on the contemporary situation.33

From the initial premise that political offenders were not to be extradited, an extensive jurisprudence has now developed, concentrating on the fugitive’s acts and motive to varying degrees. Interestingly, at the same time as the exemption was being formalised to protect persons striving for liberal democracy in Europe, another political philosophy was also undergoing development, anarchism.34 Anarchism, in its simplest form, rejects the authority of not just the government, but of the State itself. The early anarchists, such as Godwin and Proudhon, were non-violent, but following Bakunin’s association with the ‘crooked, dubious adventurer’, Nechaev, there arose the doctrine of ‘propaganda by the deed’. From 1870 on there was always to be a section of the anarchist movement ready to commit acts of terrorism, if not for their own sake, at least to symbolize a total revolt against society. Criminals and brigands were often able to claim that they were carrying out anarchist principles and that their crimes served to expose the hypocrisy and greed of the order they were attacking.35

Despite the eventual political failure of the anarchist movement in the twentieth century, it exerted an important inﬂuence on the development of the political offence exemption which may still be felt today. Violent so-called anarchists were responsible for many crimes towards the end of the nineteenth century, including the murder of Czar Alexander II in 1881.36 Moreover, apart from judges declaring anarchists to be outside the protection of the exemption because they were the enemy of all governments,37 some extradition treaties were amended to include the so-called attentat clause. This clause simply and solely excludes attacks on the Head of State from the exemption.38 Today, most terrorists are labelled anarchistic 33 34

35

36 37 38

WIJNGAERT, supra n6, at p. 202. JOLL, THE ANARCHISTS (2nd ed., 1979); GUERIN, ANARCHISM (1970). See PROUDHON, LA REVOLUTION SOCIALE DEMONTREE PAR LE COUP D’ETAT DU DEUX DECEMBRE. See also, GAY AND GAY, ENCYCLOPAEDIA OF POLITICAL ANARCHY (1999), and RAPOPORT, TERRORISM: CRITICAL CONCEPTS IN POLITICAL SCIENCE (2005). JOLL, supra n34, at pp. 78–79. See In re Meunier, [1894] 2 QB 415; Re Fedorenko (No. 1), 17 CCC 268 (1910); Malatesta, a decision of the Swiss Federal Tribunal (cited in Green, Hijacking, Extradition and Asylum, 22 CHITTY’S LJ 135 at p. 140, 1974), where the court deemed all anarchists to be thieves and brigands. See OPPENHEIM, supra n30, at pp. 393–95. See Meunier, supra n35, at 419. See SHEARER, EXTRADITION IN INTERNATIONAL LAW, at p. 185, (1971). The corollary must be that otherwise such crimes would be within the protection of the exemption.

200

Chapter 5

by the media and by some courts39 and commentators in a simplistic attempt to avoid arguments over whether their crimes are of a political character or not. It is often hard to distinguish what is anarchist and what is not, especially when the aims of a terrorist group are not clear and when the actual attack on existing society seems more important than its consequences. This is certainly true of some terrorist groups of the 1980s, such as that founded in West Germany by Andreas Baader and Ulrike Meinhof, who . . . revived the fear aroused by the anarchists of the 1890s and have consequently been regarded as themselves anarchists, a label which they disclaim.40

Anarchism is now almost a buzz-word41 and, as such, useless in attempting to clarify the ambit of the political offence exemption. Nevertheless, anarchism was an important factor in the development of the political offence exemption along with the birth of liberal-democracies in Europe. Taken together, the inﬂuence of anarchism and the traditions of the democratic nation State, it is no wonder that it is so difﬁcult to ascertain the true meaning and purpose of the political offence exemption and its ambit at the end of the twentieth century.

3. The Theory of the Present Law There are two questions that need to be addressed before looking at the various national approaches. First, whether it is a rule of international law that political offenders should not be extradited and, if so, does the rule give rights to the surrendered fugitive in the requesting State; and, secondly, how is the present law on political offences to be classiﬁed and categorised. The ﬁrst question assumes that the fugitive is a political offender; the issue of whether political offenders can be extradited can always be avoided by merely deﬁning the scope of the exemption so as to exclude the particular fugitive. Nevertheless, the status of the exemption has created practical difﬁculties on occasion. 39

40

41

See Eain v Wilkes, infra n120, at 521–22. The court recognized that Eain was not anarchistinspired, but because the so-called anarchists of the late nineteenth century had engaged in acts which killed civilians, this was sufﬁcient to exclude Eain’s crimes which had also killed civilians – anarchists were excluded from the political offence exemption because they were deemed the enemy of all governments. JOLL, supra n34, at p. 265. Emphasis added. See also, Della-Savia v Ministère Public de la Confédération, 72 INT’L L REP.618 at 625–26 (Swiss Fed.Trib. 1969). JOLL, supra n34, at p. 266 Although terrorist actions may cause shock and distress, they are nevertheless a less effective way of challenging the values of existing society than the continuous critique of our social goals and values offered by the philosophical anarchists. See also Carbonneau, The Political Offence Exemption to Extradition and Transnational Terrorists: Old Doctrine Reformulated and New Norms Created, 1 ASILS INT’L LJ 1 at pp. 30–31 (1977).

The Political Offence Exemption

201

Irish courts, for instance, held that the violence in Northern Ireland in the 1970s was political and that the non-extradition of politically motivated fugitives was a principle of international law. Further, by virtue of Article 29(3) of the Irish Constitution,42 which obliges Irish courts to recognize generally recognised principles of international law, the issue took on a constitutional signiﬁcance as well. The resulting failure by the British authorities to obtain the surrender of alleged terrorists led to the establishment of the Law Enforcement Commission, with members drawn from both jurisdictions, to discuss how to prosecute those offenders involved in the conﬂict in Northern Ireland who escaped to Ireland. Once more, however, the Irish judges on the Commission reiterated the above view43 and refused to countenance a change in extradition policy. Nevertheless, most commentators and cases suggest that the political offence question is a matter of State practice and not a general principle of international law.44 In the Steiner45 case, for example, the Court Martial in Sudan before which the accused appeared, having been extradited from Uganda as a mercenary, held that while it may be a principle of the comity of nations, it was not a rule of international law that political offenders should never be extradited. Furthermore, the exemption can always be expressly or tacitly excluded by legislation or international arrangement. The extradition treaties concluded by States in the former Soviet bloc, inter se, in the late Sixties and Seventies, for instance, did not contain any protection for political offenders.46 Thus, it is difﬁcult to sustain the argument that it is a rule of customary international law. However, given that most extradition arrangements do contain this safeguard for the fugitive, is it possible for him to resurrect it at the trial in the requesting State following his surrender, despite having pleaded it in vain at the extradition hearing in the ﬁrst place?47 The issue was considered in The Spanish-German Extradition Treaty Case.48 The court held that it was not possible to review whether the extradition court in the requested State had erred in granting surrender if it turned out at the full trial that the offence was indeed of a political character. For there is no generally recognised rule of International Law to the effect that every extradition takes place under the implied assumption of the non-political character of

42

43 44

45 46

47 48

On which, see O’REILLY AND REDMOND, CASES AND MATERIALS ON THE IRISH CONSTITUTION, pp. 281 et seq. (1980). Cmnd 5627 (1974). Cf. The State (Duggan) v Tapley, [1952] IR 62. See also, LILLICH, THE HUMAN RIGHTS OF ALIENS IN CONTEMPORARY INTERNATIONAL LAW, p. 36 (1984). In the Trial of F.E.Steiner, 74 INT’L L REP.478 (1971). See Schmid, Extradition and International Judicial and Administrative Assistance in Penal Matters in East European States, 34 LAW IN E.EUROPE 167 at p. 180. See the Soviet-G.D.R. treaty of 19 SEPT 1979, Ved.SSSR 1980 No. 35/712, cited in Schmid at pp. 171–72. See generally, CHINKIN, THIRD PARTIES IN INTERNATIONAL LAW, 1993. [1925–26] Ann.Dig.308 at 308–09, First Senate in Criminal Matters of the German Reichsgericht.

202

Chapter 5 the alleged offence. . . . [The extradition] treaty does not confer rights upon the extradited persons as such; it regulates solely the duties of the two States in matters of extradition. It grants them the right not to extradite political offenders; it does not impose upon them the duty not to extradite them.

At ﬁrst glance, the reasoning is superﬁcially sound. However, as Gerland pointed out,49 the accused who has been extradited is entitled to the protection of the principle of specialty and it would be open to him to argue that his extradition was for the common crime of murder, not for a political crime, although that may be extending the usual scope of application of the specialty principle. Nevertheless, despite Gerland’s arguments, recent authority is against the fugitive. The Steiner case,50 above, held that it was not appropriate for the court in the requesting State to query the validity of the fugitive’s surrender from the requested State. The German Federal Constitutional Court in the Baader-Meinhof case51 adopted the same position and went on to hold that extradition treaties create rights for States alone, unless there is an express provision in the fugitive’s favour.52 Thus, it would seem the balance of authority is against the exemption being a rule of international law and against it conferring effective rights directly on the fugitive. The second preliminary matter concerns the categories of political offence. No statute or treaty has so far tried to deﬁne what constitutes a political offence. Academics have attempted to delimit its boundaries,53 but the words of Viscount Radcliffe still ring very true. What then is an offence of a political character? The courts, I am afraid, have been asking this question at intervals ever since it was ﬁrst posed judicially in 1890 . . . and no deﬁnition has yet emerged or by now is ever likely to.54

Given that no absolute working deﬁnition is possible, the concept has been categorised, especially in continental Europe. A political offence may be classiﬁed as pure or relative, and a relative offence may be a délit complexe or a délit connexe.

3.1 The Pure Political Offence A pure political offence is one “directed solely against the political order”.55 The French case of Re Giovanni Gatti is accepted as giving the deﬁnitive interpretation.

49 50 51 52 53

54 55

Summarised at 309, supra n48. Supra n45. 74 INT’L L REP.493 (1977). Supra n51, at pp. 496–97. See, for example, DEFENSOR-SANTIAGO, POLITICAL OFFENCES IN INTERNATIONAL LAW, at p. 321 (1977). Garcia-Mora, The Nature of Political Offences: A Knotty Problem of Extradition Law, 48 VA.L REV.1226 (1962). Schtraks v Government of Israel, [1964] AC 556 at 589. See also, T, infra n87, at 899. SHEARER, supra n38, at p. 181.

The Political Offence Exemption

203

In brief, what distinguishes the political crime from the common crime is the fact that the former only affects the political organization of the State, the proper rights of the State, while the latter exclusively affects rights other than those of the State.56

It can be seen in such offences as treason,57 sedition or espionage. Within traditional Anglo-American extradition jurisprudence, pure political offences have played little part, for they are not included in the list of extraditable offences. However, the change to using the eliminative method of deﬁning extradition crimes will mean that in future common law judges will have to have regard to this species of political offence, too. The only question mark in relation to pure political offences concerns espionage – the undigniﬁed chaos of Ex parte Soblen,58 examined below, where a spy was deported to the ‘requesting State’ for fear that espionage might be regarded by the courts as a pure political offence under extradition law, is an example of the lack of clarity surrounding the scope of the exemption. In one British case, however, a judge at ﬁrst instance held that acts of espionage are not political in character at all,59 and this probably represents the current view.60 It is yet another example of the increased cohesiveness among States within western industrialised society, as well.

3.2

Délit Complexe

This category of relative political offence covers acts which are “directed at both the political order and private rights”.61 It is this category which has presented in most detail the question of how to balance political against mere criminal activity.62 In form, the extradition request would be for a common crime, such as murder, whereas in fact, the offence may be political with regard to the object sought and the motive of the fugitive. As will be seen below, the most important factor is generally the remoteness of the crime from the ultimate political goal.

56 57

58 59

60

61 62

[1947] Ann.Dig.145. Traitors having been the object of the ﬁrst extradition treaties (see Chapter One, §e.), occasionally they are still surrendered. Suret Guseynov, former prime minister of Azerbaijan, was extradited from Russia to face charges of treason and armed rebellion – The Guardian p. 18, 28 MAR 1997. R v Government of Brixton Prison, ex parte Soblen, [1962] 3 All ER 641. R v Government of Pentonville Prison, ex parte Rebott, [1978] L.S.Gaz.R.43; cf. Bourke v Attorney General, [1972] IR 36. See also, Espionage Prosecution Case 94 INT’L L REP.68 at 74–75. In addition, the Shayler case, The Guardian p. 1, 3 AUG 1998; p. 2, 4 AUG 1998; p. 13, 21 OCT 1998; p. 3, 22 OCT 1998; pp. 1 and 3, 19 NOV 1998; p. 3, 20 NOV 1998; p. 6, 22 JAN 1999. SHEARER, supra n38, at p. 181. Glaser, The Conceptions of Political Delict, 8 IND.YB.INT’LAFF.16 at pp. 18–31 (1959). Glaser leaves the important question of how to weigh the various factors in the balance unanswered.

204

Chapter 5

3.3

Délit Connexe

This variety of relative political offence is accepted in the U.S.A.,63 Latin America64 and in Europe.65 It is in itself not an act directed against the political order, but which is closely connected with another act which is so directed.66

The theft of guns in order to prepare for an armed rebellion and robbing a bank in order to provide funds for subversive political activities,67 are the usual examples of délits connexes. Their very remoteness from the ultimate objective will make it very difﬁcult to prove they are of a political character under most of the national tests, unless offences connected with a political offence are expressly brought within the protection by treaty or statute.

3.4 Politically Motivated Offences With both varieties of relative offence, the courts are faced with a dilemma in trying to decide if the case at bar is political. Which of the two elements is more grave? Is it the political or the common? What constitutes the greatest peril to society, and consequently the greatest interest to repression, the political or the non-political element? If the political right and interest are the more conspicuous, the offence is political. Otherwise it is not political.68

Nevertheless, commentators and courts in almost all jurisdictions have declared that mere political motive alone is insufﬁcient to characterize a common crime as political.69 At present, it is the act not the actor that predominates in establishing the nature of the offence,70 and that is the near unanimous view to come out of Stein’s extensive 1983 research.71 While a political motive is essential it is not conclusive.

63 64 65 66 67

68

69

70 71

In re Ezeta, 62 F.972 (1894) N.D. Cal. See In re Don Oscar Mariaca Pando, [1925–26] Ann.Dig.310. See Article 3.1 European Convention on Extradition, ETS 24 (1957). SHEARER, supra n38, at pp. 181–82. Cf. Ferrandi v Governor of Brixton Prison, DC/205/81, (MWC), QBD, 22 JUNE 1981; Re Kexel and Tillman’s application for habeas corpus, (CO/962/83, CO/963/83) LEXIS, 10 APR 1984, QBD. ORTOLAN, vol. 1, ELEMENTS DE DROIT PENAL, p. 311 (1875), cited in DEFENSORSANTIAGO, supra n53, at p. 76. The judgment of Walsh J in Finucane v McMahon [1990] IR 165, seemed to hold that the fugitive’s political motivation was sufﬁcient in the context of the Northern Irish conﬂict to render his offences political in character. WIJNGAERT, supra n6, at p. 203. Supra n7, at p. 379.

The Political Offence Exemption

205

In Schtraks v Government of Israel,72 the House of Lords held that the true nature of offences of a political character would be lost sight of if the transnational fugitive offender merely had to show a political motive in order to satisfy the test. Both the Canadian Federal Court73 and a United States Court of Appeals74 have similarly expressly decided that mere motivation is insufﬁcient. In civil law jurisdictions the same view has been expressed. German cases on terrorist fugitives have held that the motive is not determinative on its own and has to be viewed alongside the nature of the legal interest attacked when determining the political character of the offence.75

4. National Approaches The theory discussed above has been interpreted in courts all over the world. While there is no one uniﬁed international interpretation, several approaches have developed based on practice in a few States: the United Kingdom, the United States, France, Switzerland and Ireland. Such a categorisation of the national approaches has been propounded by several commentators,76 although, the separation of the United Kingdom and United States tests is not usual in such analyses. Although stemming from the same case,77 it is evident that the exemption does not the have equal scope in both of those jurisdictions today. In the ﬁve country-studies discussed below, the aim is to review the development of the law on offences of a political character within each jurisdiction and evaluate the usefulness of each national approach in meeting the current challenges to international public order from transnational crime. Thereafter, it will be possible to review the problems associated with the operation of the political offence exemption and the potential solutions that go beyond the analyses current in State practice. Comparing the existing national approaches with these other potential solutions, a composite response can be proposed that is best suited to developing (rather than creating anew) the jurisprudence of the political offence exemption.

72 73 74

75

76

77

Supra n54, per Viscount Radcliffe at 591. Re State of Wisconsin and Armstrong, 10 CCC (2d) 271, per Sweet DJ (1973). Escobedo v U.S., 623 F.2d 1098 at 1104 (1980). Extradition of Atta, Ahmad v Wigen, 910 F.2d 1063 at 1066 (1990); see also, 706 F.Supp 1032 (1989), 726 F.Supp 389 (1989). See Baader-Meinhof Group Terrorist Case, supra n51, at 498, and the Yugoslav Terrorism Case (No.2), 74 INT’L L REP.515 (1978). Garcia-Mora, supra n53; SHEARER, supra n38; Carbonneau, The Political Offence Exception to Extradition and Transnational Terrorists: Old Doctrine Reformulated and New Norms Created, supra n41; WIJNGAERT, supra n6; DEFENSOR-SANTIAGO, supra n53; Connolly Ireland and the Political Offence Exception to Extradition, 12 J L & SOC.153 (1985). In re Castioni, [1891] 1 QB 149.

206

Chapter 5

4.1 The United Kingdom Approach The United Kingdom’s traditional political offence exemption was found, in its most basic form, in very similar terms in s3(1) Extradition Act, 1870, s4(1)(a) Fugitive Offenders Act 1967 and in s2(2)(a) Backing of Warrants (Republic of Ireland) Act 1965. The 1870 Act described it as follows. s3(1) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.

The Extradition Act 1989 adopted a different position, partly in line with the European Extradition Convention of 1957,78 and used only the ﬁrst limb of the old formulation. s6(1) A person shall not be returned . . ., if it appears to an appropriate authority – (a) that the offence of which the person is accused or was convicted is an offence of a political character.

However, given its increasing irrelevance in European Union extradition requests, it was hardly surprising that it was abolished with respect to Category 1 States in the Extradition Act 2003. That it has also been omitted in relation to requests from Category 2 States is more concerning and may turn out to be more problematic as the focus will necessarily shift to how the requesting State will treat the transnational fugitive offender if surrendered.79 s81 Extraneous considerations A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that – (a) the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.

78 79

Supra n65. For the thinking on this radical change of approach found in ss13 and 81 of the 2003 Act, see THE LAW ON EXTRADITION: A REVIEW, Home Ofﬁce Consultation Document of March 2001, paragraphs 77 et seq. and paragraph 108(iv).

The Political Offence Exemption

207

Nevertheless, despite the fact that the political offence exemption is not included in the United Kingdom Extradition Act 2003, the analysis by the courts over past century is still a valid basis for understanding the meaning of the exemption. The United Kingdom interpretation of the exemption developed from In re Castioni.80 The test laid down by that case was that the offence had to be “incidental to and form part of political disturbances”, that is, it was committed “in the course of” and “in furtherance of the political disturbance”.81 Apart from a small ‘hiccup’ to incorporate fugitives ﬂeeing from the former Eastern bloc,82 the basis of the test remained for the most part unchanged for almost a century. Schtraks83 makes it clear that the political disturbance in question must be a valid attempt to change the government or its approach.84 The crime must be incidental to and form part of a political upheaval, committed by the fugitive offender as part of an organised political party contending for power with the established government. . . . The individual has to be at odds with the State.85 80 81

82 83

84 85

Supra n77. Supra n77, at 156 and 165–66. See also Woodcock, Political Offences and Extradition: A Conceptual Deviation in the English Courts, [1980] 1 TOP.LAW 22. See also Young, The Political Offence Exception in the Extradition Law of the United Kingdom: A Redundant Concept, 4 LEG.STUD.211 (1984). Kolczynski, supra n11. See below. See Schtraks, supra n54. See also the extraneous reasons protection in ss13 and 81 of the Extradition Act 2003 whereby a fugitive shall not be returned if he would be prosecuted, prejudiced at trial or punished on account of his race, religion, nationality, gender, sexual orientation or political opinions. For the root of this protection, see also THE INTERDEPARTMENTAL WORKING PARTY’S 1982 REVIEW OF THE LAW AND PRACTICE OF EXTRADITION IN THE UNITED KINGDOM; hereinafter, 1982 REVIEW. The 1982 REVIEW OF THE SCHEME RELATING TO THE RENDITION OF FUGITIVE OFFENDERS WITHIN THE COMMONWEALTH 1966, made it optional to exclude murder and offences prescribed by multilateral convention (COMMONWEALTH SECRETARIAT, Doc.LMM (83) 33). See now, the 2002 London Scheme for Extradition within the Commonwealth, clause 12.2. (a) A country may provide by law that certain acts shall not be held to be offences of a political character including: (i) an offence against the life or person of a Head of State or a member of the immediate family of a Head of State or any related offence (i.e. aiding and abetting, or counselling or procuring the commission of, or being an accessory before or after the fact to, or attempting or conspiring to commit such an offence), (ii) an offence against the life or person of a Head of Government, or of a Minister of a Government, or any related offence as described above, (iii) murder, or any related offence as described above, (iv) any other offence that a country considers appropriate. (b) A country may restrict the application of any of the provisions made under sub paragraph (b) to a request from a country which has made similar provisions in its laws.” Per Lord Reid, supra n54, at 582–84. R v Governor of Pentonville Prison, ex parte Kakis, 122 SOL.JO. 96 (1978), per Lord Widgery CJ. See also Re Kexel and Tillman, and Ferrandi v Governor of Brixton Prison and Government of Italy, supra n67. One of those allegedly involved in the murder of the former Serbian Prime Minister Djindjic who was arrested in Greece has claimed that he was seeking to restore Milo·evi,c loyalists to power and change the government policy on surrender to the ICTY, a classic political offence under the United Kingdom approach – The Guardian p. 12, 1 JUL 2004.

208

Chapter 5

Furthermore, the act must be proximate to the ﬁnal goal of the organization contending for power with the government. I would accept . . . that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged, for in the case of none of the extradition crimes can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to deﬁne how remote that object might be. If the accused robbed a bank to obtain funds to support a political party, the object would . . . clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufﬁciently immediate to justify the epithet ‘political’.86

The case of T v Secretary of State for the Home Department,87 a case concerning an application for refugee status but raising the same issues,88 has reﬁned the test yet further. There, the applicant, as a member of FIS, an organization seeking to overthrow the Algerian government, had been involved in the planning of a bomb attack on Algiers Airport, as a result of which ten people had been killed, and in a raid on a military depot in which one person had been killed. The majority of the House of Lords held that in determining whether there is a sufﬁciently close and direct link between the crime and the organization’s goal, one had to have regard to the means used and to the target of the offence, whether, on the one hand it was a military or government target or, on the other, whether it was a civilian target, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.89

As such, proximity under the English test incorporates an element of proportionality. The requirement that the offence be proximate to the ultimate goal of the fugitive’s cause, is common throughout State practice in extradition today. For instance, it is part of the reasoning of Dutch courts, too. In Folkerts v Public Prosecutor,90 the Dutch Supreme Court held that for the offences in question to have a political 86

87 88

89

90

Cheng, supra n12, per Lord Diplock at 945. On the facts, the killing of Chiang Kai Shek’s son in the early 1970s might well have been too remote, but Cheng was not returned on that basis. See also Watin v Ministère Public Fédéral, 72 INT’L L REP.614 (Swiss Fed.Trib. 1964). [1996] 2 All ER 865. 1951 Convention Relating to the Status of Refugees, Article 1F(b), 189 UNTS 50. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime. . . . And see the 1967 Protocol, 606 UNTS 267. Supra n87, at 899. Lord Lloyd, in part, built on the provisions of the European Convention on the Suppression of Terrorism, ETS 90 (1977), 15 INT.LEG.MAT.1272 (1976). See also, the 2003 Protocol to the ECST, ETS 190, discussed below. 74 INT’L L REP.498 at 501 (1978).

The Political Offence Exemption

209

character, they ought reasonably to be expected, separately or combined, to yield a result “directly related to the ultimate goal”. In McF v Public Prosecutor,91 it held that the offences in question were too remote from the transnational fugitive offender’s ultimate goal of the uniﬁcation of Ireland. The Australian Federal Court has expressed the same view in Prevato v Governor Metropolitan Remand Centre,92 stating that “the action which constitutes the offence must be committed in the direct prosecution of the [group’s] campaign”. In Canada, the case of Re Gil and the Minister of Employment and Immigration93 held that injuring the commercial interests of supporters of the opposed regime could have no objectively rational prospect of forcing that regime to fall or change its policies. Such an analysis of the scope of the exemption as is seen in English case law, is rooted in the immediate acts of the fugitive offender rather than in his mere political or ideological motivation. That is insufﬁcient in and of itself. The test places the emphasis on the offence, not the offender. Thus, the late nineteenth century anarchist groups were deemed to be outside the scope of the test from the beginning.94 Moreover, the exemption was established for those wishing to create democratic nations in the liberal-democratic mould, not to protect those revolutionaries who wished to establish States where British95 ideals of justice would not be cherished. Therefore, modern-day terrorists who attempt to overthrow Western European States are held to be outside the ambit of the exemption, in part because they tend to want a change from the liberal-democratic tradition.96 The simple test of Castioni is overladen with the prejudices and perceptions of nineteenth century Britain – judges today still view the exemption through the eyes of its Victorian creators.97 This is implicit in the decision in the case of Cheng,98 where the majority 91 92 93 94

95

96

97 98

100 INT’L L REP.414 at 425 (1986). (1986), 64 ALR 37. (1994) 119 DLR (4th) 497 at 515–16. The Royal Commission on Extradition (1866) thought that anarchists would not be regarded as political offenders under what was to be s3(1) Extradition Act 1870. See SHEARER, supra n38, at p. 171, n.4. See Kexel and Tillman and Ferrandi, supra n67. NB. Nowadays, the test is premised on whether the fugitive ﬁnds favour with ‘Western’ political systems. See Kexel and Tillman and Ferrandi, supra n67. Kexel and Tillman were neo-fascists from the Federal Republic of Germany and Ferrandi was an Italian who belonged to the Milan section of Brigate Communiste. Kexel and Tillman were returned to the Federal Republic of Germany with no further appeal. They were sentenced on 15 March 1985 in Frankfurt for attempted murder and bank raids along with three other neo-Nazis (The Guardian p. 6, 16 MAR 1985). Kexel committed suicide following the sentencing, The Guardian p. 6, 19 MAR 1985. The District Court of Amsterdam, on the other hand, held that the ECST did not prevent offences committed by a member of the IRA escaping from the Maze Prison in N.Ireland, during which prison ofﬁcers were unlawfully imprisoned, assaulted and murdered, from being political since none of his crimes were covered by Article 1 – McFarlane v Public Prosecutor, 19 NETH.YB INT’L L 462 at p. 464 n.100 (1988). I am grateful to the Editorial Board of the Netherlands Yearbook of International Law for providing me with this information. Per Lord Reid in Schtraks, supra n54, at 583. Supra n12, per Lord Salmon’s judgment at 961–63, esp. 962.

210

Chapter 5

of Lords agreed to surrender the fugitive to help combat world terrorism. Lord Simon’s dissenting speech shows that Cheng’s offence was, for all intents and purposes, within the classical political test of Castioni, yet the protection of the exemption was not granted to him. The majority, especially Lord Salmon, took account of the change in circumstances since Castioni and decided that this humanitarian provision could never have been intended to apply to the terrorism of the 1970s and beyond.99 In conclusion, therefore, the courts have interpreted the seemingly very simple test by reference to the precise mischief at which the 1870 Act was originally aimed. The result has been effectively to exclude terrorists from the scope of the test. While the outcome is acceptable, it would be more appropriate to amend the test to meet the needs of international public order openly. But this [excluding terrorism] will be for governments in international conclave: there is no advantage in marginal and anomalous judicial erosion of traditional immunities.100

To a certain extent, Lord Simon’s desire has come true. An increasingly prevalent trend, not limited to the United Kingdom’s approach to interpreting the ambit of the political offence exemption, is for governments to restrict the ambit of its protection by treaties and domestic legislation. The government of the United Kingdom implemented the European Convention on the Suppression of Terrorism,101 to be considered below, through the Suppression of Terrorism Act 1978.102 The purpose of the ECST, which was drafted under the auspices of the Council of Europe, is to assist in the suppression of terrorism by strengthening extradition procedures and mutual assistance arrangements between European States, in order to

99

100 101

102

In this conclusion they are supported by Warbrick – [1980] PUB.LAW 113 at pp. 118–22. The decision would be more coherent if it had been decided on the basis that Cheng would receive a fair trial in the United States, rather than that the political offence must be political vis à vis the requesting State. See Lord Simon’s dissenting speech, esp. at 956 et seq. (supra n12). Nevertheless, STEIN, supra n7, found that the “vis à vis” test was commonly used by courts in several different countries – see p. 379. See also, R v Governor of Belmarsh Prison and Another, ex parte Dunlayici, The Times, 2 AUG 1996, QBD, 4 July 1996, where the court held, in part, that the political offence exemption was inapplicable because the transnational fugitive offender was requested by Germany while the government that was the dominant target of his crimes was Turkey. NB. This extends the Cheng analysis, because the Divisional Court accepted that the transnational fugitive offender was partly motivated by his desire to change German policies towards Turkey and its Kurdish population. Supra n12, at 960 per Lord Simon. Supra n89. And see Gilbert, The ‘Law’ and ‘Transnational Terrorism’, 26 NETH.YB.INT’L L 3 (1996). See Barratt, The European Convention on the Suppression of Terrorism Act 1978, [1980] 1 TOP.LAW 1 at p. 1. NB. The Genocide Act 1969 had already declared genocide not to be an offence of a political character.

The Political Offence Exemption

211

ensure that perpetrators of such acts do not escape prosecution and punishment. The intended result is that it should be impossible for terrorists to ﬁnd a safe refuge in Europe.

Although a major reform of the United Kingdom’s law on extradition and political offenders at the time, the statute had limited impact,103 partly because the Convention was only open to signature by Council of Europe member States.104 Further, it is difﬁcult to envisage any crime in the normal course of events that would have been deemed political in character under the law as it was before the United Kingdom ratiﬁed the ECST that will now be outside the protection of the United Kingdom’s statutorily amended political offence exemption. This policy of limiting the scope of the political offence exemption in English law by entering into regional or bilateral arrangements with other politically homogenous States has continued. At the regional level, the members of the Commonwealth amended the then 1966 Scheme Relating to the Rendition of Fugitive Offenders within the Commonwealth105 at the law ministers meeting in Colombo, Sri Lanka in 1983.106 The 2002 London Scheme for Extradition within the Commonwealth now provides that the political offence exemption will not apply if the requesting and requested States are parties to a multilateral anti-terrorism convention that represses speciﬁc crimes and includes an aut dedere, aut judicare clause or if international law provides that the political offence exemption does not apply to such offences.107 Furthermore, under clause 12.2, parties to the Scheme may refuse to recognize as political in character an attack on the life of the Head of State, the Head of Government or any minister of the government, or, indeed, any murder or any other offence that the state considers appropriate.

103

104

105 106

107

Cf. Re Kexel and Tillman, supra n67, where several of the charges were deemed to be non-political under the Suppression of Terrorism Act 1978. It is submitted on behalf of the applicants that all the offences are of a political character within the meaning of the Act of 1870, but it is conceded that charges 12–18 (explosives offences under Sch.1, paras. 12 & 13, 1978 Act) cannot be so regarded by reason of the provisions of the Suppression of Terrorism Act 1978. Art. 11 ECST, supra n89. Cf. The 2003 Protocol to the ECST (ETS 190), not yet in force, provides in Article 10 that Observer States to the Council of Europe can also ratify the Protocol and thus the ECST. Cmnd.3008. See the 1982 REVIEW OF COMMONWEALTH EXTRADITION ARRANGEMENTS, supra n83. The scheme was revised and adopted in Colombo as Doc.LMM(83)33; see now the 2002 version of the Scheme agreed at Kingstown, St Vincent and the Grenadines, 18–21 November 2002. See clause 12.1(b). E.g. Convention for the Suppression of the Unlawful seizure of Aircraft, done at The Hague, 16 DEC 1970, 10 INT.LEG.MAT.133 (1971); the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Art. VII, 78 UNTS 277 (1951); the Convention on Suppression and Punishment of the Crime of Apartheid 1973, Art. XI(2), 13 INT.LEG.MAT.50 (1974).; the International Convention for the Suppression of Terrorist Bombings, 1998, Art. 11, 37 INT.LEG.MAT.249 (1998); the International Convention for the Suppression of the Financing of Terrorism, Annex to UNGA Res.54/109, 25 February 2000, Art. 14.

212

Chapter 5

The more speciﬁc restrictions are to be found in the former 1986 Anglo-U.S. Supplementary Extradition Treaty108 and the Anglo-Indian Extradition Treaty.109 The details of the latter treaty will be considered below, but they followed the approach of the ECST and the amended Commonwealth Scheme of excluding certain crimes from the ambit of the exemption. The combined effect of all these restrictive agreements may well have been to effectively abolish the political offence exemption vis à vis all the countries with which the United Kingdom conducts regular extradition relations, an approach that was taken to its logical conclusion in the Extradition Act 2003. The 2003 Act eschews the character of the crime and focuses on the treatment the fugitive might expect if surrendered. However, it goes further than previous non-persecution clauses; under ss13 and 81, extradition is barred if the transnational fugitive offender would be prosecuted, punished, prejudiced at his trial or detained or restricted in her/his personal liberty on account of her/his “race, religion, nationality, gender, sexual orientation or political opinions”. The political offence exemption had the beneﬁt that if extradition was refused, it was because of the character of the crime, not because the requested State’s competent authorities deemed the system of justice in the requesting State to be subject to prejudice. Rather than avoiding becoming involved in the internal affairs of the requesting State, the Extradition Act 2003 forces the courts to concentrate on the treatment accorded to speciﬁc groups in that society.

4.2 The United States Approach The United States has no equivalent in any statute to the former United Kingdom legislative formulation of the exemption, but similar provisions are found in U.S. extradition treaties. Since these treaties are deemed to be self-executing they are the equivalent of statutes under United States law.110 However, because it is a treatybased approach there tends to be some variation on the theme. For example, the U.S.-Israeli treaty of 1962111 is very similar to s3(1) of the former United Kingdom Extradition Act 1870 and states that extradition shall not be granted in the following circumstances:

108

109

110

111

The Supplementary Treaty in its ﬁnal form was published in Cm.294, UKTS 6 (1988) and, with comments, in Appendix 1 to the U.S. Senate EXEC.REPT 99–17, accompanying TR.DOC.99–8. It was ratiﬁed on 23 December 1986. It has now been superseded by the 2003 treaty. 21st September 1992, SI 1993 No. 2533. The treaty was published and presented to Parliament on December 2nd 1992. See Gilbert, The Anglo-Indian Extradition Treaty, 42 INT’L & COMP.LQ 442 (1993). Self-executing treaties are law in the U.S. by virtue of Art.VI of the U.S. Constitution: Whitney v Robertson, 124 US 190 (1888). 2 INT.LEG.MAT.186 (1963).

The Political Offence Exemption

213

Art.VI(4). When the offence is regarded by the requested party as one of a political character or if the person sought proves that the request for his extradition has, in fact, been made with a view to trying or punishing him for an offence of a political character.

In the alternative though, the U.S.-Mexican treaty of 1978112 is much more succinct. Article 5(1) simply states: Extradition shall not be granted when the offence for which it is requested is political or of a political character.

The treaty with Costa Rica113 provides in Article 4 that extradition shall not be granted where the offence is a political offence or one connected with a political offence. The treaty with Jamaica,114 whilst excluding offences of a political character as usual, also provides that extradition shall not be granted if it is established that extradition is requested for political purposes.115

As such, the scope of inquiry of the court could be much broader than just the character of the offence. Despite the differences in wording in the treaties, however, the courts have concentrated on the overall theme and purpose of the exemption rather than indulging in distinguishing the particular phraseology of treaty provisions. The United States ﬁrst considered the scope of the political offence exemption in In re Ezeta.116 The court in that case purported to follow the English case of Castioni. Unfortunately, having regard to the facts of Ezeta, the ﬁnal decision does not ﬁt within the Castioni test and is much more in line with the Mill deﬁnition which had been roundly rejected in the English case.117 Subsequent decisions have

112 113 114 115 116 117

17 INT.LEG.MAT.1058 (1978). TR.DOC.98-17, in force 11 October 1991. TR.DOC.98-18, in force 7 July 1991. Article III(2)(a) – emphasis added. See below. Supra n63. Ezeta involved, inter alia, bank robbery to pay troops, a délit connexe – supra n63, at 996–1003. The testimony shows that they were all committed during the progress of actual hostilities between the contending forces, wherein Gen. Ezeta and his companions were seeking to maintain the authority of the then existing government against the active operations of a revolutionary uprising. With the merits of this strife I have nothing to do. My duty will have been performed when I shall have determined the character of the crimes or offenses charged against these defendants, with respect to that conﬂict. During its progress, crimes may have been committed by the contending forces of the most atrocious and inhuman character, and still the perpetrators of such crimes escape punishment as fugitives beyond the reach of extradition. I have no authority, in this examination, to determine what acts are within the rules of civilized warfare, and what are not. War, at best, is barbarous, and hence it is said that “the law is silent during war.” (at 996).

214

Chapter 5

conﬁrmed the Ezeta interpretation, that if the crime is committed ‘in the course of’ or ‘in furtherance of a political disturbance’, then it will be of a political character.118 As the bench in Castioni feared, this approach has meant that any crime committed during the course of a political uprising or other violent political disturbance, as long as some tenuous connection can be proved with the ultimate object of the fugitive’s group, may be deemed political.119 The preliminary and essential hurdle for the fugitive is the existence of a political uprising or other violent political disturbance.120 Once that is shown, then the fugitive need only show that his crime was to do with that uprising or disturbance as part of his group’s attempt to effect political change. On that understanding, the United States interpretation of the exemption is, in some ways, much the strictest, for the fugitive has no prospect of success unless a political uprising or other violent political disturbance is proven. Thus, in Sindona v Grant,121 the fugitive alleged that the Italian government’s request for his surrender for ﬁnancial crimes was a cover to deal with him in relation to a political and ﬁnancial scandal involving high ranking members of the Italian government; the U.S. extradition court, though, held that since there was no violent disturbance the offences could not be political.122 Moreover, the court in Locatelli123 held that it was not competent to investigate the motives of the requesting government in seeking to prosecute the fugitive offender; it was an issue for the Secretary of State.124 A comparison should be drawn with the approach in the British case of Kolczynski,125 where the Divisional Court took account of the nature of the Polish political system as it was in 1955. However, once the U.S. courts ﬁnd that that violent political disturbance exists, then the remaining stages of the United States test are interpreted very liberally. When the United States analysis has been applied to the problem of terrorist violence, anomalous results have occurred. Until 1986 no member of the Provisional Irish Republican Army (IRA) had ever been returned following a request from the 118

119

120

121 122 123 124 125

E.g. Artukovic, 140 F.Supp 245 (1956), 247 F.2d 198 (1957), 355 US 393 (1958), 170 F.Supp 383 (1959): cf. Artukovic was extradited in February 1986, 784 F.2d 1354 (1986). Jimenez v Aristeguieta, 311 F.2d 547 (1962), cert.den. 375 US 48 (1963). In re Doherty, 599 F.Supp 270 (1984). Compare the Ezeta case, supra n63, with Lord Diplock’s view in Cheng, supra n86. See also Lubet and Czaczkes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 J CRIM.L & CRIMINOLOGY 193 at pp. 203–06 (1980); Cf. Ornelas v Ruiz, 161 US 502 at 512. In Quinn v Robinson, 783 F.2d 776 (1986), the Court of Appeals agreed to the extradition of Quinn for murder because it found there was no uprising in mainland Britain: the decision was not as progressive as Eain v Wilkes, 641 F.2d 504 (1981), cert.den. 454 US 894 (1981), and Extradition of Atta, supra n74. See also Report Recommending the Reform of the Law of International Extradition, by the Committee on Immigration and Nationality Law, [1986] A.B.A. of C.N.Y., THE RECORD, 587 at pp. 592–93. Supra n25. Having been extradited, Sindona died of poisoning in an Italian gaol. In the Matter of the Extradition of Locatelli, 468 F.Supp 568 at 574–75 (1979). See also Extradition of Atta, supra n74, at 1066–67, rev’g in part 726 F.Supp 389 at 409–20 (1989). Supra n11.

The Political Offence Exemption

215

United Kingdom government.126 The courts held that there was a violent political disturbance in Northern Ireland and any crime committed for the objectives of the IRA was a political offence and, thus, non-extraditable.127 However, the problem of terrorist crimes was addressed by the Court of Appeals for the Seventh Circuit in the Eain case.128 Eain concerned an act of indiscriminate bombing in Tiberias, Israel, by a member of the Palestine Liberation Organisation (PLO). The court held there needed to be a direct political effect from the crime if it were to fall within the exemption.129 This view, requiring proximity between the offence and the organisation’s ultimate goal, is a logical development of the analysis of political offences given by the U.S. Supreme Court in Ornelas v Ruiz.130 In Ornelas, the court held that in assessing the political character of the offence it was appropriate to consider the nature of the foray, the mode of attack and the person of the victims. Further, in Artukovic v Rison,131 decided after Eain, it was held that there needed to be a “rational nexus” between the crimes charged and the prevailing disturbance. In Extradition of Atta,132 the Court of Appeals held that an attack on a commercial bus carrying civilian passengers on a regular route is not a political offence.

The focus of these judgments, therefore, is on the surrounding circumstances and on the status of those harmed. It is hoped that if the Supreme Court ever considers such a case, that the Eain proximity test will be approved.

126

127

128 129 130 131 132

McMullen, 74 AM.J INT’L L 433 (1980); Mackin, 668 F.2d 122 (1981); cf. Quinn, supra n120. Quinn was requested for the murder of a Police Constable in London where the court held no violent political disturbance, the sine qua non of the political offence exemption test under U.S. law, was taking place. See also Doherty, supra n118. Cases post-1986 may have reﬂected a change in policy towards the crimes committed by those claiming to have acted on behalf of the IRA, or they may simply be evidence that the former Anglo-U.S. Supplementary Treaty, supra n108, proved effective in restricting the scope of the political offence exemption in U.S. jurisprudence. See, for example, McMullen v United States 769 F.Supp 1278 (1991), 953 F.2d 761 (1992), 989 F.2d 603 (1993); United States v Smyth 795 F.Supp 973 (1992), 976 F.2d 1535 (1992); 820 F.Supp 498 (1992), 826 F.Supp 316 (1993), 863 F.Supp 1137 (1994), 61 F.3d 711 (1995), 72 F.3d 1433 (1996). See also, United States v Lui Kin-Hong 110 F.3d 103 at 114–15 (1997). The Supplementary Treaty has now been replaced by the 2003 Treaty. Quinn was originally deemed extraditable by Federal Magistrate Steele Langford (The Guardian p. 1, 30 SEP 1982) because Quinn had not satisfactorily established his membership of the IRA. This was despite a conviction by a Dublin court for being a member of that organisation. Quinn won his appeal before District Judge Aguilar, but the United Kingdom government appealed and the Court of Appeals (Ninth) held him extraditable for murder, supra n120. He was extradited on 21 October 1986; The Guardian p. 1, 22 OCT 1986. Supra n120. Supra n120, at 520–21. 161 US 502 at 511 (1912). 628 F.Supp 1370 at 1376 (1986); 784 F.2d 1354 (1986). Supra n74, at 1066.

216

Chapter 5

As it stands, the United States approach is both too wide and too narrow.133 Its narrowness is seen in its absolute requirement that there be a ‘political uprising’.134 This must be more than a mere campaign of terror, for in London in the 1970s the IRA waged many series of bombings, yet the Court of Appeals in Quinn held there was no political uprising on mainland Britain.135 The width of the U.S. approach is in the fact that once such a political uprising does exist, then crimes to do with the ultimate goal of the fugitive’s group will usually be within the exemption. The United States interpretation has only caused problems with respect to requests for members of the IRA, and these cases may be explained as discrete anomalies, but the potential is there, although no longer for IRA requests following the Good Friday Peace Agreement and the end of the armed struggle in Northern Ireland. Yet, there is evidence of a more general change. While the attempts to amend the political offence exemption through legislation during the Reagan years ultimately ﬁzzled out,136 there are some hints in case law that proximity to the ultimate goal of those creating the violent political disturbance and proportionality with respect to that goal will be relevant factors in determining the character of the offence. The ﬁrst example of a new analysis is found in two cases137 where the judges considered wider issues than merely seeing whether a political uprising occurred. In going beyond the narrow question of whether an offence was incidental to a disturbance, Doherty and Eain138 suggested the following factors for consideration – the civilian or military status of the victim of violence.139 – whether the crime charged is an atrocity, war crime or an act in violation of international law and inconsistent with international standards of civilized conduct.140 – that the person committing the violence belongs to an organisation with a welldeﬁned organisation, discipline and command structure, as opposed to every fanatical group or individual with loosely deﬁned political objectives.141

133 134 135 136

137 138 139 140

141

THE RECORD, supra n120, at pp. 592–93. Supra nn25 and 123. Supra n120, at 813. A plethora of Bills in Congress were aimed at restricting the exemption – see Currin, Extradition Reform and the Statutory Deﬁnition of Political Offences, 24 VA.J INT’L L 419 (1984). Between 1981 and 1984, both the House of Representatives and the Senate considered several bills which either transferred the political offence question to the executive from the courts, or excluded certain offences from the protection of the exemption, or gave courts guidelines on how to apply the test. Some of these provisions are considered below, even though general legislative change came to nothing. See also, Extradition of Atta, supra n74. Supra nn118 and 120, respectively. Doherty, at 275; Eain, at 521–23. See also Atta, supra n74, at 1066. Doherty at 274. And see Atta, supra n74, 706 F.Supp 1032 at 1042 (1989), 726 F.Supp 389 at 402–08 (1989), aff’d 910 F.2d 1063 at 1066 (1990). Doherty, at 276.

The Political Offence Exemption

217

– and that the conduct be committed in the place where the political change was to be effected.142–143

While, apart from the second and the fourth, these criteria are probably not acceptable because they are vague and because many of those terrorist attacks condemned by politicians worldwide would be within their ambit, it does reveal that the exemption may be evolving at last in the United States into something more suited to present-day needs. The uprising may be the starting point to a decision on whether the offence is of a political character, but it should not predominate as much as it has done in the past. Even in Quinn,144 which rejected the Eain analysis, the court took a policy decision to exclude terrorist offences from the ambit of the exemption. The exemption was designed to protect [those] engaged in internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power. It was not designed to protect international political coercion or blackmail, or the exportation of violence and strife to other locations – even to the homeland of an oppressor nation.145

The U.S. approach, though, has at present little to offer the international community in terms of resolving the continuing difﬁculties inherent in the political offence exemption.

4.3 The French Approach146 The deﬁnitive interpretation of the classical French approach was given in Re Giovanni Gatti.147 Political offences are those which injure the political organism, which are directed against the constitution of the Government and against sovereignty. . . . The offence does not derive its political character from the motive of the offender, but from the nature of the rights it injures. The reasons on which non-extradition is based do not take account of mere motives for the purpose of attributing to a common crime the character of a political offence.

142 143

144 145

146

147

Doherty, at 275. THE RECORD, supra n120, at pp. 592–93. In Extradition of Atta, supra n74, the Second Circuit seems to have used such criteria in its determination that the fugitive’s offence was non-political; it expressly noted that it was an attack on a commercial bus killing a civilian. Supra n120, at 808. Supra n120, at 807. The Ninth Circuit seems to have decided that the British government had already withdrawn from N.Ireland. Otherwise, its conception that carrying out a bombing campaign in London is somehow ‘exporting’ terrorism from N.Ireland does not really make a lot of sense. See generally, Baclet-Hainque, Le Conseil d’Etat et l’Extradition en Matière Politique, [1991] RDDP 197. [1947] Ann.Dig.145 (Case No. 70) at 145–46.

218

Chapter 5

This interpretation of the exemption is very strict, only conferring protection on those offenders whose crimes would affect the State alone and in no way harm individuals – espionage, sedition or lèse majesté would fall within the test, but not murder of the head of State with the aim of securing power. Such a test does not give rise to the excesses of the United States interpretation,148 but is unworkable and unreasonable in other ways. No relative political offender149 would ever be exempted from extradition. In fact, the Gatti test was an anomaly, contradicting In re Colman,150 and it has frequently been ignored.151 In cases concerning alleged Red Brigade Terrorists, Piperno and Pace,152 the court has moved towards the Swiss approach of determining whether the political or common element of the crime predominated. Indeed in a case involving Basque separatists, long protected in France against Spanish requests, the Conseil d’Etat rejected the fugitive’s contention that armed attacks and the murder of a policeman in Spain were political offences, and stated that even if they were their very gravity deprived them of a political character.153 Thus, in practice French courts exempt both pure and relative political offenders, and increasingly they are following the Swiss approach.

4.4 The Swiss Approach The Swiss approach is the most developed analysis of those so far considered and receives wide acceptance from academic writers. The political motivation test, or the predominance test, as it is known, balances the political and common elements of the crime.154 Only if the political element dominates is the fugitive non-extraditable. The method of balancing was explained in In re Nappi.155 148 149

150 151

152

153

154

155

Eg. Artukovic, supra n118. I.e. where a common crime is perpetrated for political ends viz. Castioni, supra n77. See GarciaMora, supra n53, at pp. 1239 et seq. [1947] Ann.Dig.139. Eg. In re Rodriguez, [1953] 2 Gaz.Palais 113; In re Hennin, [1967] La Semaine Juridique 15274; In re Inacio do Palma, [1967] La Semaine Juridique 15386. See Carbonneau, supra n41, at pp. 19–22. Chambre d’Accusation de Paris, 1979. See also the court’s decision in the Klaus Croissant case: – Carbonneau, Extradition and Transnational Terrorism: A Comment on the Recent Extradition of Klaus Croissant from France to West Germany, 12 INT’L LAWYER 813 (1979). Croissant was arrested as a Stasi spy following Germany’s reuniﬁcation – The Guardian p. 8, 15 SEPT 1992. Compare the decisions in Abu Daoud, supra n9, and the Conseil d’Etat’s decision vis à vis the French government’s release of two Iranian’s whom the courts had ordered to be surrendered to Switzerland, Affaire Gouvernement Suisse, supra n16. See also Carbonneau, The Political Offence Exception as applied in French cases dealing with the Extradition of Terrorists: The Quest for an Appropriate Doctrinal Analysis Revisited, [1983] MICH.YB.INT’L LEG.STUD.209. See 26 SEP 1984, Rec.307, [1985] PUB.LAW 328. The case note reviews the extradition hearing in the Conseil d’Etat of three Basque separatists, Galdeano, Ramirez and Beiztegui. The Swiss test is to be found in Article 3 of the Law on International Judicial Assistance in Criminal Matters, 20 MAR 1981, 20 INT.LEG.MAT.1339 (1981), as amended 4 OCT 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern). See also, THE RECORD, supra n120, at pp. 598–99. 19 INT’L L REP.375 at 376 (1952). Cf. Lord Diplock in Cheng supra n12.

The Political Offence Exemption

219

[The] political character of an offence is predominant only if the offence is in direct relation to the end sought. In order that such a relation may exist, this offence must be a really efﬁcacious method of achieving the end, or constitute an integral part of acts leading thereto, or represent an incident in a general political movement in which the parties have recourse to such methods.

Thus, the United Kingdom concept of proximity to the ultimate goal is mirrored in the Swiss test. If the crime is too remote, then the political element will not predominate. While a political disturbance is not required, it is implicit in the test, otherwise the act may not achieve the goal.156 In practice therefore, the Swiss and United Kingdom approaches, thus far, achieve the same end. However, the Swiss test is further reﬁned by incorporating an independent test of proportionality. When considering the common element, the violence or damage involved is weighed against the ultimate goal of the fugitive and his group. If the crime is violent then the common element will outweigh the political motive unless such violence is the only means of achieving the end. In re Pavan157 provides a clear exposition of the principle. Homicide, assassination and murder, is one of the most heinous crimes. It can only be justiﬁed where no other method exists of protecting the ﬁnal rights or humanity.

In Ktir v Ministère Public Fédéral,158 a fugitive murderer was returned to France where he had killed a fellow member of the FLN who was allegedly betraying the movement. Although . . . he acted for political, not personal reasons, it does not, however, follow that the act had a predominantly political character. For this to be the case it is necessary that the murder be the sole means of safeguarding the more important interests of the FLN and of attaining the political aim of that organization.159

Ktir should be contrasted with Watin,160 another case arising out of the struggle surrounding Algerian independence. Here, the fugitive had been sentenced to death in absentia for an attempt on the life of the French head of State, General de Gaulle. The court held that the test for whether assassination was the “sole means” was a subjective one. Moreover, assassination may seem to be the last resort of the fugitive’s group “where the person aimed at practically embodies the political

156

157 158 159 160

E.g. In re Kaphengst, [1929–30] Ann.Dig.282 (Case No.188). Like Kolczynski, supra n11, the Swiss test can accommodate crimes where there is no political uprising, but the offence is still of a political character – see In re Kavic, Bjelanovic and Arsenijevic 19 INT’L L REP.371. [1927–28] Ann.Dig.347 at 349. 34 INT’L L REP.143 (1961). Supra n158, at 144 (emphasis added). Cf. DEFENSOR-SANTIAGO, supra n53, at p. 159. Watin v Ministère Public Fédéral, supra n86, at 617.

220

Chapter 5

system of the State so that it might be thought that his disappearance will entail a change in that system”. In such circumstances, as in the instant case, the requirements of proportionality and of proximity will be satisﬁed. However, the test is a strict one. The interests at stake should be sufﬁciently important to excuse, if not to justify, the infringement of private legal rights.161 As one Irish judge has said, following a similar approach: Modern terrorist violence . . . is often the antithesis of what could be regarded as political.162

The 1996 English case of T,163 whilst referring to the means used, incorporated that in the remoteness test. The difference from the Swiss test is that under the Swiss interpretation, even if the crime is proximate to the ultimate goal of the transnational fugitive offender’s organization, the means used might still be disproportionate and, thus, not political in character. If the roles of the requesting and requested States had been reversed in Castioni, the Swiss probably would have extradited the fugitive to the United Kingdom because the murder of the ofﬁcial was described by one of Castioni’s accomplices as unnecessary.164 An equivalent to the Swiss proportionality test was suggested by the Royal Commission on Extradition (1878), but not adopted.165 Whether T166 would make any difference to the result in Castioni is unclear, because it makes the nature of the crime part and parcel of the proximity test under the English interpretation. This added requirement in the Swiss test – that the means used must not be excessive – outlaws most terrorist crimes. It would be very difﬁcult to prove that indiscriminate attacks on civilians, or even sporadic attacks on security forces without a co-ordinated campaign, would ever be sufﬁciently proximate to, and the sole means of attaining, the ultimate goal, like T. However, an attack on the government itself would still have to be proportionate under the Swiss test. The Swiss test, therefore, is the most reﬁned of all ﬁve approaches when dealing with the traditional stereotype political offender.

161 162 163 164 165 166

Ktir, supra n158, at 145. McGlinchey v Wren, [1982] IR 154 at 159. Supra n87, at 899. Supra n77, at 154. C 2039; PARRY, vol.6, BRITISH DIGEST 805, 1965. Supra n87.

The Political Offence Exemption

221

4.5 The Irish Approach167 As has just been stated, the Irish courts have incorporated the requirement of proximity and the Swiss proportionality test into their interpretation of the political offence exemption. In McGlinchey v Wren168 and in Shannon v Fanning,169 the Supreme Court granted extradition because the offences were not proximate to the ultimate goal and because they were not proportionate.170 The High Court in Ellis v O’Dea (No. 2)171 held that the offences set forth in the two warrants . . . cannot be regarded as political offences . . . as they contemplate and involve indiscriminate violence and can be correctly characterised as terrorism.172 167

168 169 170

171

172

See generally, Campbell, Extradition to Northern Ireland: Prospects and Problems, 52 MOD.L REV.585 (1989); Gilbert, The Irish Interpretation of the Political Offence Exemption, 41 INT’L & COMP.LQ 66 (1992); Delaney and Hogan, Anglo-Irish Extradition Viewed from an Irish Perspective, [1993] PUB.LAW 93; Walker, Constitutional Governance and Special Powers Against Terrorism: Lessons from the United Kingdom’s Prevention of Terrorism Acts, 37 COLUM.J TRANSNAT’L L 1 (1997). Parts of this section are taken from my 1992 article in the International and Comparative Law Quarterly. Supra n162. [1984] IR 548. See also, Quinlivan v Conroy (No. 2) [2000] 3 IR 154. These two elements tend to be considered together. In Shannon, supra n169, McCarthy J opined as follows at 598: The argument made on [Shannon’s] behalf involves the proposition that, however revolting the circumstances of a particular crime may be, if the ultimate aim of the criminal, however remote it be from the crime, be truly political, then it is a political offence. I reject such a proposition; on the same basis it could be argued that the murder of a young woman shot down on the public street may be categorised as a political offence because her murder might deter her father, a Belfast magistrate, from carrying out his duties as such. The mind rebels against such a view. (emphasis added) He also laid down some general guidelines with regard to proximity and proportionality (at 597–98): In my opinion, without seeking to delimit the circumstances there are to be considered, the objective determination of whether or not an offence charged is a political offence or an offence connected with a political offence within the meaning of the Act should primarily rest upon an assessment of three factors: 1. The true motivation of the individual or individuals committing the offence. I do not share the view that, in order to assess motive, the individual charged must admit his involvement in the crime. 2. The true nature of the offence itself. 3. The identity of the victim or victims. In assessing all or any of these factors, the proximity of each to the alleged political aim is critically important and is capable of objective assessment. (emphasis added) [1991] ILRM 346 at 362 (HC & SC). Hamilton P went on to hold that Ellis’ crimes were also nonpolitical because they fell within the category of excluded offences under the Extradition (ECST) Act 1987. Ellis did not plead the political offence exemption in the Supreme Court. In Clarke v McMahon [1990] IR 228, the transnational fugitive offender withdrew his claim that his offences were political probably, according to the judgment of Finlay CJ, with which Walsh J concurred, because the nature of the attack on a member of the Ulster Defence Regiment was indiscriminate, with injuries occurring to innocent men, women and children during its commission.

222

Chapter 5

However, Irish courts have added a further reﬁnement. The Irish courts grasped the issue of extradition and democracy, though the jurisprudence is less than settled – to that extent, more detailed analysis of the reasoning in these cases is necessary. In Quinn v Wren173 the Irish Supreme Court handed down a judgment which looked not only at the circumstances of the crime, but also at the crime in its context as part of the INLA’s campaign. As Finlay CJ explained: The plaintiff states that he committed the offence charged for the purposes of the INLA, the aims and objectives of which are the establishment of a 32 county workers’ republic by force of arms. The achievement of that objective necessarily and inevitably involves the destruction and setting aside of the Constitution by means expressly or impliedly prohibited by it: see Articles 15.6 and 39. To interpret the words ‘political offence’ contained in s50 of the Act of 1965 so as to grant immunity or protection to a person charged with an offence directly intended to further that objective would be to give to the section a patently unconstitutional construction. This Court cannot, it seems to me, interpret an Act of the Oireachtas as having the intention to grant immunity from extradition to a person charged with an offence the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and of the organs of State established thereby.174

The decision was a novel interpretation of the political offence exemption. Even if an offence were found not to violate any of the strictures of McGlinchey and Shannon,175 the fugitive could still be found to be extraditable if the aims of his parent organisation threatened the Irish Constitution or State. The reasoning also leaves a little to be desired, for it does not automatically follow that because the fugitive is in dispute with the requested State that the offence for which he is requested is not political vis à vis the requesting State. Quinn, however, was followed by Russell v Fanning,176 a case involving a long time member of the IRA; there was much discussion in the High Court and on appeal concerning the scope of the new limitation. At ﬁrst instance, the case came before O’Hanlon J, shortly after the Supreme Court’s judgment in Quinn had been handed down. In his original afﬁdavit Russell averred that the Irish Republican Army has as its primary objectives the ending of British rule in Northern Ireland and the reintegration of the national territory, if necessary by force of arms.177

173

174 175 176 177

[1985] ILRM 410. Quinn had been carrying out frauds in order to raise funds to purchase arms for the INLA – a délit connexe. Quinn, supra n173, at 419. See also McDonald v Bord na gCon, [1965] IR 217. See supra nn162 and 169. [1986] ILRM 401 (H.C.); see also 5 Irish L.T.1 (1987); [1988] ILRM 333 (S.C.). Supra n176, at 405 (H.C.).

The Political Offence Exemption

223

Russell was charged in Belfast with, inter alia, the attempted murder of a member of the RUC and with the murder of a prison warder during the Maze Prison mass breakout of September 1983.178 He denied involvement in any of the offences in the warrant, but O’Hanlon J in the High Court decided the political offence issue as if the allegations were true.179 With respect to the two major crimes mentioned above, O’Hanlon J held the offences to be prima facie political in character, neither too remote nor disproportionate:180 the murder of the RUC ofﬁcer was part of the IRA’s campaign to make continued British rule in N.Ireland untenable, and the escape from the Maze was to enable Russell to carry on his part in that campaign. However, despite this prima facie ﬁnding, O’Hanlon J then went on to grant extradition, refusing protection under s50 because the IRA aimed to reintegrate N.Ireland into the Republic by force of arms if necessary, contrary to Article 6 of the Irish Constitution.181 According to O’Hanlon J, following Quinn v Wren, even if the offences charged were political vis à vis the requesting State,182 extradition may still be granted if the fugitive’s organization wishes to subvert the Irish Constitution. In the Supreme Court, the majority decision was given by Finlay CJ.183 The political offence issue turned on whether the aims and objectives of the IRA, like those of the INLA, necessarily threatened the Constitution. Whereas the INLA wished to create a 32 county workers’ republic, contrary to the State structure envisaged in the 1937 Constitution, the IRA wished to reintegrate N.Ireland into the national territory. At that time, Articles 2 and 3 of the Irish Constitution express the same desired end, although the IRA was prepared to use force of arms.184 In addition, Russell had subsequently submitted a further afﬁdavit stating that once N.Ireland was reintegrated he would thereafter live under the democratic processes of the Constitution.185 Finlay CJ drew on Article 6 to equate the IRA with the INLA, as had O’Hanlon J at ﬁrst instance. He then stated that since the Extradition Act 1965 had been passed after the coming into force of the Constitution,

178

179

180 181 182 183 184

185

The Times, 26 SEP 1983, p. 1. The charges relating to the break-out were dropped just before his surrender: see The Guardian, 18 AUG 1988, p. 3. To do otherwise would have either removed the protection of the exemption from any fugitive protesting his innocence or required the requesting State to prove the accused’s guilt at the extradition hearing. Supra n176 at 407–09 (H.C.). Supra n176, at 410 (H.C.). Cf. Cheng, supra n12. Henchy and Grifﬁn JJ concurring. See also, Sloan v Culligan, [1992] 1 IR 223 (HC & SC). The IRA’s constitution is discussed at 242–43 by Lynch J. Finlay CJ rejected the view that the fugitive could pick and choose which parts of his parent organisation’s policies to adopt. Russell had relied on membership of the IRA to support his argument that his offences were political and could not now be heard to limit his allegiance to better his claim in the light of the decision in Quinn. The High Court in Sloan, supra n184, at 243 (approved by Finlay CJ at 262–63) held that the fugitive’s ‘stereotype renunciation’ was ineffective. However, in Magee v O’Dea, [1994] 1 IR 500, Flood J dealt with this issue very superﬁcially.

224

Chapter 5 [the] meaning of political offence within the provisions of s50 . . . cannot therefore be construed as granting immunity from extradition to a person charged with an offence the purpose of which is to subvert the Constitution or usurp the functions of the organs of State established by the Constitution.186

The question for the court to decide, therefore, was whether on the basis of the afﬁdavits it could be said that Russell could be imbued with the objectives of the IRA, which in turn could be held to be either subversive or usurpative. As regards the objectives of the IRA, Finlay CJ held as follows: For a person or group of persons, however, to take over or seek to take over the carrying out of a policy of reintegration decided upon by himself or themselves without the authority of the organs of State established by the Constitution is to subvert the Constitution and to usurp the function of Government.187

On this reasoning, Russell goes further than Quinn, for in the earlier case it could be readily seen that the INLA’s ultimate goal would undermine the 1937 Constitution. The objective of the IRA, however, did not contradict any speciﬁc Article at that time; it simply adopted a different policy to the one chosen by the Irish Government, in that it accepted the use of arms to unify Ireland. For a while after Russell it seemed that the question of the scope of the political offence exemption had been settled, even if the reasoning of the Supreme Court left something to be desired.188 However, in Finucane v McMahon189 the courts again had to grapple with whether a member of the IRA could be granted immunity from extradition under s50 of the Extradition Act 1965. In the High Court,190 Finucane claimed in his afﬁdavit that the request for his surrender related to political offences or offences connected with a political offence. Further, he stated that at no time did he intend to subvert the Constitution or to usurp the functions of the organs of the State. Hamilton P., however, held that since the IRA was a proscribed organisation under the Unlawful Organisations (Suppression) Order of 1939,191 it must be committed to undermining the organs of the State. Furthermore, agreeing with Finlay CJ in Russell,192 Hamilton P went on to hold that an accused could not pick and

186 187 188

189 190 191 192

Supra n176, at 338 (SC). Supra n176, at 339 (SC). Russell, supra n176, was a 3:2 majority in the Supreme Court and it must be admitted that the reasoning of Hederman and McCarthy JJ, dissenting, was more convincing. Hederman J argued, at 346–47, that the reintegration of N.Ireland was a constitutional imperative and that the courts could not prevent people outside the Republic from advocating methods of reuniﬁcation contrary to the policies of the Oireachtas. [1990] IR 165. Supra n189, at 169. SI 162/1939. Supra n176.

The Political Offence Exemption

225

choose which parts of the IRA’s agenda he wished to accept.193 As such, his case was four-square with Russell and so his offence could not be political in character. However, in the Supreme Court Walsh J, while acknowledging that Quinn had been correctly reasoned and decided,194 reversed Russell. While one must agree with Walsh J’s argument, that violence does not per se make an offence nonpolitical195 under traditional reasoning, he failed to consider in any detail arguments concerning proximity and proportionality established in Irish extradition jurisprudence since McGlinchey and Shannon. Nevertheless, the tenor of Walsh J’s judgment, which represented the decision of the court,196 was that the activities of the IRA, but not the INLA, could qualify as political offences, unless excluded as terrorism at common law or by statute. The IRA did not threaten to usurp the Irish constitution.197 If such had been the ﬁnal conclusion on this aspect of extradition jurisprudence, then the requirement of constitutionality in relation to the political offence exemption would be extremely restricted and would not have merited attention outside the then Anglo-Irish context. However, the Irish High Court in Sloan v Culligan198 qualiﬁed the absolute protection of Finucane in such a way that a more general element to determining the political character of an offence might still be divined in the Irish approach. Lynch J took evidence on the objectives of the IRA as set out in the IRA constitution or training manual which he held “brushed aside” the Constitution and the institutions of State,199 thus upholding the ratio of Finucane while effectively resurrecting Russell: the IRA were seen to be threatening the Constitution rather than merely usurping the function of government. Lynch J further rejected the fugitive’s “stereotype renunciation” of any of the IRA’s objectives beyond reintegrating the Six Counties. However, rather than simply apply the rule as set out in Quinn and deem the fugitive to be outside the scope of the exemption, Lynch J went on to consider whether the crimes charged would further those unconstitutional aims. On the facts, it was found that Sloan’s crimes did not

193

194 195 196

197 198 199

If one claims political status on the basis of membership of an organization, one should not be able to disavow parts of its aims in order to improve one’s cause before the courts of the requested State – if the transnational fugitive offender had been requested from The Netherlands, for instance, no afﬁdavit regarding usurpation of the Irish Constitution would have been sworn. Finucane, supra n189, at 209. Supra n189, per Walsh J at 213. Cf. Finlay CJ and Grifﬁn J held that Russell v Fanning was correctly decided; nevertheless, for the sake of unanimity, they both agreed with the conclusion of Walsh J whose judgment expressly rejected the decision in Russell. The intention of Finlay CJ and Grifﬁn J in agreeing with the majority was to promote certainty in this area of extradition law, but, with the greatest respect, one is left wondering how openly disagreeing with Walsh J’s opinion of Russell, yet still agreeing with his overruling of that decision, can add anything but confusion. Indeed, at the time, reuniﬁcation could be seen as a Constitutional imperative. Supra n184. The Supreme Court upheld the reasoning of Lynch J on this point. Supra n184, at 242–43.

226

Chapter 5

threaten the Constitution and could, thus, be judged on their own merits as to whether they would qualify as political in character.200 This compromise of examining the facts of the offence to see if there is a present threat to the Constitution and the institutions of the State has much to commend it. Moreover, it provides the theoretical basis for an additional requirement to be demanded of all fugitives claiming their offence is political in character. The rationale of Finucane, as interpreted by Sloan201 and Magee,202 is that a crime which not only violated the law of the requesting State, but also posed a threat to the requested State, should be outside the scope of the political offence exemption. Such an understanding of the restrictions on offences of a political character harks back to the decision in In re Meunier.203 Usually Meunier is taken to hold that anarchists are excluded from the scope of the exemption, on the ground that anarchism is the enemy of all governments. As such, it is cited by commentators who argue that terrorists who attack liberal democratic States should be outside the scope of the political offence exemption,204 on the basis that terrorism is the modern day anarchism. However, this betrays a superﬁcial understanding of terrorism and of Cave J’s judgment in Meunier. In Meunier the fugitive was returned to France because he threatened England, the requested State, just as much as the requesting State. The true ratio of Meunier is that a fugitive will not be protected where he is in dispute with the requested State as well as the requesting State. On this analysis Quinn and Sloan merely apply the principles of Meunier to a more speciﬁc situation – where the transnational fugitive offender is deemed the enemy of both the United Kingdom and Ireland.205 Thus, an adequate academic underpinning to the QuinnSloan doctrine is available which renders it suitable for all political offence cases. Where the fugitive would be just as much a threat to the requested State on the basis of the offences committed, then there is no reason to refuse extradition. As such, as between States of the liberal-democratic tradition, one could argue that any fugitive who threatened that tradition ought not to enjoy the protection offered by the political offence exemption. While it may not be as readily acceptable a test as the proportionality requirement, since it relates to the ‘national interest’ element of the political offence exemption rather than its humanitarian aspects,206 it is an addi-

200

201 202 203 204 205

206

In Magee v O’Dea, supra n185, Flood J, dealing with the killing in England of an army sergeant by a member of the INLA, claimed that he was following the rationale of Finucane, but only superﬁcially considered whether the crime charged did, in fact, subvert the Constitution (at 508, where Flood J simply relies on an afﬁdavit that the murder in Derby had no latent aim of subverting the Constitution). On the facts, he held that the crime was not excluded from the scope of the political offence exemption. See also, Quinlivan v Conroy (No. 2) [2000] 3 IR 154. Supra n184. Supra n185. Supra n35. Carbonneau, supra n41. In the light of the Good Friday Peace Agreement of 1998, a member of the Real IRA might be seen as undermining the joint stance of Dublin and London. See STEIN, supra n7.

The Political Offence Exemption

227

tional reﬁnement that is adopted in practice by courts, even if it is not usually expressly spelt out other than in these Irish cases.207 Evidence for its wider acceptance as a general principle, though, is found in an unreported French case.208 The court held that a request from Italy should be granted because an offence would not be deemed political where the object of the accused is to destroy the democratic order and overthrow the economic and social order of a liberal-democratic country which was a party to the ECHR. This French case is also supporting evidence for Stein’s analysis of the dual objectives of the exemption: that it is designed to protect both the fugitive and the national interests of the requested State.209

4.6 Conclusion on the Basis of the Present Law The political offence exemption reveals the conﬂict between the need for international public order and the protection of human rights, including the rights of the victim as well as the terrorist.210 The restrictions found in the Swiss and Irish approaches show the interplay of those two factors. As Wijngaert puts it:211 . . . [The] political offence exception has appeared overly broad because it is . . . applicable to very serious crimes, which, although committed for political reasons, are so dangerous to international public order that extradition should not be excluded, simply because of their being politically motivated. On the other hand, the political offence exception has proved too narrow because it does not directly protect common offenders who, if extradited would risk an unfair trial [because of their political views], in the requesting State.

Not one of the current range of tests is wholly satisfactory. Yet, if the current system is to be retained, then, generally, it is the Swiss test that ought to be adopted. It is this test that all forms of politically motivated offence should satisfy if they are to be within the exemption. This proposal is not to say, though, that the Swiss approach is perfect. To use it is merely to continue applying nineteenth century standards, drafted to combat the problems of that era in Europe, to twenty-ﬁrst century circumstances. Moreover, the Swiss interpretation is open to abuse, since it is

207

208

209 210

211

In Eastern Europe before the collapse of the Iron Curtain in 1989–90, legal commentators argued that there was no need for the political offence exemption inter se because an “attack on the political and economic foundations of another socialist state must therefore be understood as an attack on one’s own [socialist] State.” Schmid, supra n46, at p. 180. A summary of the Cour d’Appel’s decision can be found in J.C.P. Douai, 1985 II 20353, 29 NOV 1983. Supra n7. Fox, Campbell and Hartley v United Kingdom, Series A, vol. 182, European Court of Human Rights. See Warbrick The European Convention on Human Rights and the Prevention of Terrorism, 32 INT’L & COMP. LQ 82 (1983); hereinafter, Warbrick. See also, Stein, How Much Humanity Do Terrorists Deserve?, in DELISSEN AND TANJA, HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD, 1991, pp. 567 et seq. Supra n6, at p. 197.

228

Chapter 5

possible to extradite a fugitive in circumstances where his trial would be prejudiced and partial in the requesting State – the political offence exemption has nothing to say about the treatment the transnational fugitive offender might suffer if extradited. Yet, within the constraints of the current approach to the political offender exemption, the Swiss is still by far the best way of applying the nineteenth century formulation to present events. Many recent attempts to modify the exemption, as will be seen below, have all proved less acceptable and less effective. The Swiss predominance and proportionality test is a general one which, by applying both remoteness and proportionality, would promote international public order while still protecting political activism. The danger of a fugitive being returned to face persecution or prejudice could be avoided by expressly including a defence to extradition based on the treatment he would likely receive on being surrendered. *

*

*

Having considered the main national approaches to applying the exemption, it is necessary to consider further what extra measures are needed, if any, and whether those steps already taken on a piecemeal basis have proved to be truly effective. Proper consideration of the proposed amendments requires a review of the various problems which today cloud the issue of the political offence exemption.

5. The Issues Facing the Political Offence Exemption The fugitive raising the political offence defence may have committed the extradition crime in a variety of settings, ranging from a war to the ofﬁces of an international bank. This diversity of backgrounds is, indeed, one of the main problems with the exemption – that it is raised in so many different situations that it loses all semblance of coherence, precision or clarity. Taking as a starting point the events of the nineteenth century out of which the political offence exemption grew, it may be possible against that background to assess whether fugitives raising the defence today should be protected, using the purposive mischief rule as the primary canon of interpretation. On the other hand, the whole premise of this approach may be ﬂawed because times have changed so much that the ambit of the exemption, if deﬁned by its nineteenth century origins, may be too far removed from the types of case to which it is presently applied. In that case, its ambit may have to be completely redeﬁned for present needs in order to secure and promote international public order. To cut it off from its roots, though, would be to lose all criteria by which to judge the crimes with respect to which it is presently pleaded. The ultimate answer may lie in having regard to the historical approach to political offences, but in recognizing that a purposive approach requires continuous reassessment.

The Political Offence Exemption

229

5.1 Armed Conﬂict and War Criminals The revolutionaries attempting to overthrow autocratic European regimes were the ﬁrst group to be protected by the political offence exemption. Their successors who ﬁght guerrilla campaigns do not necessarily receive such support today.212 Moreover, it must always be borne in mind that in many instances, the activities of nationalist and self-determinist groups will also be dealt with under the rules of armed conﬂict as well as the law of extradition, for their actions will fall within the Geneva Conventions and 1977 Protocols.213 The dividing line between violent acts a few days before the general uprising and similar acts in the uprising itself, is all important, and was discussed by Lord Reid in Schtraks.214 They [States] have condemned as criminal isolated terrorist activities, such as ambushes of troops or the use of booby-traps against them, when those activities would be regarded as legitimate forms of warfare if carried out on a wider scale by a guerrilla army.215

There is no doubt following the First Additional Protocol to the Geneva Conventions,216 that wars of national liberation from colonial and racially discriminatory governments should be within the category of international armed conﬂict.217 The Second Additional Protocol includes nationalist groups seeking a change of government.218 It applies to: Article 1.1 [All] armed conﬂicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised groups which, under responsible command, exercise such control over a part of its territory

212

213

214 215

216 217

218

Cf. Article 7 of the 1974 Resolution on the Deﬁnition of Aggression, UNGA Res.3314 (XXIX); 69 AM.J INT’L L 480 (1975), which holds that nothing in the Resolution shall be taken as prejudicing the right of peoples to struggle for self-determination, freedom and independence and to seek and receive support. 75 UNTS 31-417 (1950) and 1125 UNTS 3-699 (1979), 16 INT.LEG.MAT.1391-449 (1977), respectively. Supra n54, at 583. And see generally Warbrick, supra n210, pp. 86–89. Warbrick, supra n210, at p. 89. See also Paust, Law in Guerrilla Conﬂict: Myths, Norms and Human Rights, 3 ISRAELI YB.H.R.39 (1973). Art.1(4), supra n213. Warbrick, supra n210, at p. 86. See also Fleiner-Gerster and Meyer, New Developments in Humanitarian Law: A Challenge to the Concept of Sovereignty, 34 INT’L & COMP. LQ 267 at pp. 274–77 (1985); Murray, The Geneva Protocols and Conﬂict in Southern Africa, 33 INT’L & COMP. LQ 462 (1984); DELISSEN AND TANJA, supra n210, at pp. 81–206. Second Additional Protocol to the Geneva Conventions, supra n17, Art. 1. See also Warbrick, supra n210, pp. 87 et seq., DELISSEN AND TANJA, supra n210, at pp. 209–66, and Gasser, supra n17.

230

Chapter 5 to enable them to carry out sustained and concerted military operations and to implement this Protocol.219

If such a situation exists, then the rules of armed conﬂict ought to apply. The law of armed conﬂicts legitimates the use of force against the other party to the conﬂict. However, it condemns the use of terror (by either party) on the civilian population.220 Surely an act which would be properly punishable even in the context of a declared war or in the heat of open military conﬂict cannot and should not receive recognition under the [political offence exemption].221

In Extradition of Atta, the District Court applied the Geneva Conventions and Protocols to the claim that the attack on a civilian bus on the West Bank was of a political character.222 It proceeded on the basis that the fugitive offender had to show his crimes did not violate the Conventions or Protocols before they could prima facie qualify as political. The court was prepared to consider that the fugitive, as a member of the Abu Nidal Organization, was ﬁghting a war of self-determination and that, as such, Protocol I might be applicable. Given that Article 48 calls on parties to distinguish at all times between combatants and civilians and that civilians and civilian objects shall not be the object of attack,223 the fugitive did not meet the test. The distinction as to whether a conﬂict should be treated as international or non-international for the purposes of characterizing the standard for whether the offence is of a political character is open to question – most civil wars will not fall within Article 1.4 of Protocol I,224 which means that the law relating to civilian targets will be that found in Protocol II, which is much weaker. Furthermore, parts of the 1949 Geneva Conventions and Protocol I are now customary international law applicable in non-international armed conﬂicts,225 so the distinction is otiose. Subject to that caveat, the Atta test is helpful. 219

220

221

222

223 224

225

Article 1.2 states that the Protocol shall not apply to: situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conﬂicts. See, for example, Protocol I, Article 51, supra n213. See also, Warbrick, supra n210, p. 88 esp. n24; MURPHY, PUNISHING INTERNATIONAL TERRORISTS, pp. 5 and 11, esp. n16, (1985); Currin, supra n136, at p. 450; DELISSEN AND TANJA, supra n210, at p. 225. And see Chapter Seven on War Criminals below. Doherty, supra n118, at 274. There are many unlawful acts under the international law of armed conﬂict which are not heinously violent (e.g. misuse of a ﬂag of truce where some people are killed) which might still qualify as political – the quotation needs to be interpreted as if the request is for a remote and disproportionate crime. Supra n74, at 726 F.Supp at 405–08. The Court of Appeals did not discuss the question, but nor did it criticize the approach. See Articles 51 and 52. NB. Article 13 of Protocol II makes a similar demand. International armed conﬂicts include wars of self-determination against colonial domination, alien occupation or racist regimes. See Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on

The Political Offence Exemption

231

Offences that transcend the Law of Armed Conﬂict are beyond the limited scope of the political offences the Treaty excludes as bases for extradition.226

The remaining question is whether those charged with war crimes ought to be extradited. War criminals, to be considered in detail in Chapter Seven below, have raised the political offence exemption, however, when they have appeared before extradition courts. That it should be applied to war criminals may seem to be stretching the point to absurdity, since it is generally accepted that the action has to be extreme before it is treated as a ‘war crime’.227 Not every violation of the rules of warfare is a war crime. . . .228

The International Law Commission’s Report of 1950, Part III of which sets out the so-called Nuremberg Principles, attempted a deﬁnition of war crimes and crimes against humanity under Principle VI (b) and (c).229 As will be argued in Chapter Seven below, the term ‘war crime’ should be limited to acts condemned by the common conscience of mankind, by reason of their brutality, inhumanity, or wanton disregard of rights of property unrelated to reasonable military necessity.230

226

227

228 229

230

Jurisdiction before the Appeals Chamber of ICTY, Case No.IT-94-1-AR72 (1995), per Cassese J. See also, HENCKAERTS AND DOSWALD-BECK, CUSTOMARY HUMANITARIAN INTERNATIONAL LAW, 2005. Supra n74, at 408. in the Zakaev case in the United Kingdom Extradition Court (see Bofaxe 286E, The judgement on the extradition of Zakaev to Russia, 21 January 2004. Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum), part of the reasoning for refusing extradition was the fact that Russia was pursuing a war, not an anti-terrorist operation – see The Guardian p. 9, 1 FEB 2003; p. 10, 15 SEP 2003; p. 6, 14 NOV 2003; p. 20, 10 SEP 2004. The Geneva Conventions and Protocols speak of grave breaches. Article 1 of the Statute of the ICTY talks of the Tribunal having jurisdiction over “serious violations of international humanitarian law” – the Statute of Tribunal was presented to the Security Council in The Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 32 INT.LEG.MAT.1159 (1993). The Statute was adopted by the Security Council in Resolution 827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993). SHEARER, STARKES’ INTERNATIONAL LAW, 11th ed. 1994, at p. 502. U.N.G.A.O.R, V Supp. 12 (A/1316) 11–14, (1950). (b) War Crimes: namely, violations of the laws and customs of war. Such violations shall include, but shall not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justiﬁed by military necessity: (c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. SHEARER, supra n228, at p. 502.

232

Chapter 5

It is difﬁcult to see how ‘ill-treatment’, ‘deportation to slave-labour’, ‘persecution’ or ‘devastation not justiﬁed by military necessity’ as set out in Principle VI(b), could ever amount to an offence of a political character, that is one which is incidental to and in furtherance of a political disturbance and which is proportionate. The only possible justiﬁcation for refusing extradition would be to protect the fugitive from persecution in the requesting State. Such abominable crimes should not otherwise be left unpunished; indeed, if the alleged war criminal is not extradited, then it will be argued in Chapter Seven that he ought to be tried in the requested State or before an international criminal tribunal,231 such as the ad hoc tribunals for the former Yugoslavia and Rwanda or the permanent International Criminal Court. Nevertheless, war criminals have raised the exemption as a defence in an extradition hearing and it has, on occasion, been accepted.232

5.2 Terrorism233 Probably the greatest controversy relating to the ambit of the political offence exemption concerns transnational terrorism, although the issue goes much wider than extradition law.234 There is, indeed, no international law as yet dealing with

231

232

233

234

Geneva Conventions I-IV and Protocol I, supra n213: I – Arts.49 & 50; II – Arts.50 & 51; III – Arts.129 & 130; IV – Arts.146 & 147; Protocol I – Arts.86–89. See the Artukovic cases, supra n118. Cf. MURPHY, supra n220, at p. 65, and Extradition of Atta, supra n74, at 726 F.Supp 389 at 405 (1989). NB Artukovic was extradited thirty years later in 1986 – Artukovic v Rison, supra n131. A general reading list on terrorism could double the length of this book. With that in mind, the following are those items which the author found helpful and which he had time to look at. Volume 19 ISRAELI YB.HR (1989); CASSESE, TERRORISM, POLITICS AND LAW (1989); FREY AND MORRIS, VIOLENCE, TERRORISM AND JUSTICE (1991); Sofaer, Terrorism and the Law, 64 FOR.AFF.901 (1986); Laqueur, Reﬂections on Terrorism, 64 FOR.AFF.86 (1986); GEORGE, WESTERN STATE TERRORISM (1991); VERCHER, TERRORISM IN EUROPE (1992); Freestone, ‘The Principle of Co-operation: Terrorism’ in LOWE AND WARBRICK, THE UNITED NATIONS AND THE PRINCIPLES OF INTERNATIONAL LAW (1994); Pike, “Terrorism” and the Political Offence Exception’ in ATKINS, THE ALLEGED TRANSNATIONAL CRIMINAL (1995); HIGGINS AND FLORY, TERRORISM AND INTERNATIONAL LAW (1997); Guillaume, Terrorism and International Law, 53 INT’L & COMP. LQ 537 (2004); Gilbert, supra n101 (from which some of the following text is taken). The so-called ‘War on Terror’ that has been spoken of since the events of 11 September 2001, muddies several distinct issues. During an armed conﬂict (war has rarely been declared in recent times), it is legitimate to target enemy combatants, so terrorists could legitimately kill members of the armed forces of those States seeking to bring an end to their activities through the ‘War on Terror’. Wars are usually with other States or with rebel groups based within one’s own territory, not amorphous organisations operating on a global level (see also, Byers, Terrorism and the Use of Force in International Law after 11 September, 51 INT’L & COMP.LQ 401 (2002); Khan, The war on Terrorism, 45 IND.J.INT’L L 1 (2005)). The law relating to armed conﬂicts is not designed to respond to the campaigns being waged against terrorist organizations. Launching a ‘Campaign Against Terrorism’ would have given rise to less confusion.

The Political Offence Exemption

233

‘terrorism’,235 rather certain crimes are labelled as ‘terroristic’.236 Bassiouni has persistently made it clear that the underlying problem is a failure at the international level to reach a working deﬁnition of terrorism.237 There is, however, no internationally agreed upon methodology for the identiﬁcation and appraisal of what is commonly referred to as ‘terrorism’. . . . There is no international consensus as to the appropriate reactive strategies of States and the international community, their values, goals and outcomes. All of this makes it difﬁcult to identify what is sought to be prevented and controlled, why and how. As a result, the pervasive and indiscriminate use of the often politically convenient label of ‘terrorism’ continues to mislead this ﬁeld of inquiry.

Bassiouni’s own deﬁnition of terrorism describes it as an ideologically-motivated strategy of internationally proscribed violence designed to inspire terror within a particular segment of society in order to achieve a power-outcome or to propagandize a claim or grievance irrespective of whether its perpetrators are acting for or on behalf of themselves or on behalf of a State.238

235

236

237

238

In Tel-Oren v Libyan Arab Republic 726 F.2d 774 at 796 (1984), it was held that terrorism was not an international crime. The divergence as to basic norms of course reﬂects a basic disagreement as to legitimate political goals and the proper method of attainment. Given such disharmony, I cannot conclude that the law of nations – which, we must recall, is deﬁned as the principles and rules that states feel themselves bound to observe, and do commonly observe – outlaws politically motivated terrorism, no matter how repugnant it might be to our own legal system. (footnote omitted). The United Nations International Convention for the Suppression of the Financing of Terrorism, UN Doc.A/RES/54/109, 25 February 2000, after making reference to the other UN anti-terrorist conventions, then does provide a more general deﬁnition of terrorism: Article 2 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: ... (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conﬂict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act. Bassiouni, A Policy-Oriented Inquiry into the Different Forms and Manifestations of ‘International Terrorism’, at pp.xvi in BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM: U.S. PROCEDURAL ASPECTS (1988); hereinafter, Inquiry and LEGAL RESPONSES, respectively. See also Sofaer, cited in Cassese, infra n265, at p. 589, where he suggests that the law relating to terrorism is ﬂawed and perverse. See also, Report of the UNGA Sixth Committee, Measures to eliminate international terrorism, UN Doc.A/59/514, 18 November 2004, Report of the Secretary-General, Measures to eliminate international terrorism, UN Doc.A/60/228, 12 August 2005; and the 2005 World Summit Outcome, UN Doc.A/60/L.1, paragraphs 81–91, 20 September 2005. Supra n237, at p. xxiii. NB This chapter will not deal in great detail with State-sponsored terrorism.

234

Chapter 5

Despite the difﬁculties in achieving an agreed deﬁnition, a minimal one would provide that terrorism includes violent crimes committed with the intention of intimidating some government or group within a State.239 From this foundation, a tentative distinction can be drawn between State-sponsored terrorism and other forms of terrorism. Bassiouni240 differentiates on the following grounds. Individual and small group terror-violence may occur in the contexts of ‘wars of national liberation’ and internal political conﬂicts which may or may not be deemed conﬂicts of a non-international character within the meaning of the [Geneva Conventions 1949 or the 1977 Protocols, thereto]. State conducted or State-sponsored terror-violence may occur in the contexts of wars of international or non-international character, military occupation, in support of individual and small group terror-violence, and in the maintenance of political regimes by means of serious violations of internationally protected fundamental human rights.”

The 1991 version of the Draft Code of Crimes Against the Peace and Security of Mankind241 dealt with terrorism in two provisions, although the latest draft has not included terrorism in its list of crimes because, in part, the vagueness of the concept militates against its criminalization. Nevertheless, the 1991 Draft Code can be used for the guidance it provides as to international thinking on the meaning of terrorism. Article 24 – An individual who as an agent or representative of a State commits or orders the commission of any of the following acts: – undertaking, organizing, assisting, ﬁnancing, encouraging or tolerating acts against another State directed at persons or property and of such a nature as to create a state of terror in the minds of public ﬁgures, groups of persons or the general public shall, on conviction thereof, be sentenced [to . . .].242

239

240 241

242

See VERCHER, supra n233; Freestone, supra n233, at p. 138; Green, infra n245, esp. at pp. 573 et seq.; Bassiouni, The Penal Characteristics of Conventional International Criminal Law, 15 CASE W.RES.J INT’L L 27 (1983), and Inquiry, supra n237, esp. at p. xxiii, (1988). See also, Articles 17 and 24 of the former Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, 30 INT.LEG.MAT.1554 at pp. 1584–93 (1991) – Bassiouni (ed)., COMMENTARIES (1993); McCormack & Simpson, An Appraisal of the Substantive Provisions, 5 CRIM.L FORUM 1 (1994). In the 1996 version of the Draft Code (A/51/332), these provisions are missing. Inquiry, supra n237, in LEGAL RESPONSES, at p. xxv. Supra n239. The latest draft may be found at A/51/332, (1996). It deﬁnes aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel and war crimes – ‘terrorism’ is no longer included. See the debates in the 46th Session of the ILC (UNGAOR, 49th Session, Supplement No. 10, A/49/10, at para. 103) on the need to determine penalties.

The Political Offence Exemption

235

Article 17 – 1. An individual who as leader or organiser commits or orders the commission of an act of intervention in the internal or external affairs of a State shall, on conviction thereof, be sentenced [to . . .]. 2. Intervention in the internal or external affairs of a State consists of fomenting [armed] subversive or terrorist activities or by organizing, assisting or ﬁnancing such activities, or supplying arms for the purpose of such activities, thereby [seriously] undermining the free exercise by that State of its sovereign rights.

The essence of Article 24 was that it provided for an unspeciﬁed penalty for individuals who carried out terrorist acts on behalf of a State. Article 17 was more layered – it only applied to leaders and organisers; they had to be involved in intervention in the internal or external affairs of another State; and, such intervention consisted of being involved in fomenting subversive or terrorist activities for the purpose of undermining the free exercise by that State of its sovereign rights.243 Thus, the ordinary individual terrorist, as opposed to leader or organiser, acting on behalf of a group244 rather than the State, would not have been readily caught by the Draft Code. The Code was, therefore, too narrow and, thus, inappropriate for the purposes of the international community and of this study. On the other hand, Bassiouni’s deﬁnition is sufﬁciently wide not to omit incidentally any possible interpretation of terrorism. The only caveat is that international criminal law has so far concentrated on crimes by individuals rather than on Bassiouni’s inter-State aspects of State-sponsored terrorism, such as international armed conﬂicts; such is the preserve of international humanitarian law. Therefore, terrorism is to be taken to include all acts of terror-violence intended to intimidate a State or group within a State. One reason for this lack of an agreed deﬁnition of terrorism had been the tension within the United Nations between the developed world, which wanted to promote resolutions condemning terrorism, and the developing world, which demanded an exception for those seeking self-determination. Green argues that the United Nations more often indulged in polemics about the background to terrorist acts, rather than condemning the particular outrage.245 This conﬂict of ideas was evident in earlier General Assembly Resolutions which referred to terrorism both as acts of violence by individuals (para. 5) and as the behaviour of colonial, racist and alien regimes (para. 4). The General Assembly 1. Expresses deep concern over increasing acts of violence which endanger or take innocent human lives or jeopardize fundamental freedoms;

243

244 245

Cf. Article 17 might also include the leader of one State who supports the acts of a terrorist group in another State, but that is more related to Article 24. E.g. Baader-Meinhof or the Red Brigades. Green, International Crimes and the Legal Process, 29 INT’L & COMP. LQ 567 at p. 582.

236

Chapter 5 2. Urges States to devote their immediate attention to ﬁnding just and peaceful solutions to the underlying causes which give rise to such acts of violence; 3. Reafﬁrms the inalienable right of self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and upholds the legitimacy of their struggle, in particular the struggle of national liberation movements, in accordance with the purposes and principles of the Charter and the relevant resolutions of the organs of the United Nations; 4. Condemns the continuation of repressive and terrorist acts by colonial, racist and alien regimes in denying peoples their legitimate right to self-determination and independence and other human rights and fundamental freedoms; 5. Invites States to become parties to the existing international conventions which relate to various aspects of the problem of international terrorism.246

Subsequent General Assembly resolutions, though, condemned terrorism as a violation of human rights.247 However, this added to the confusion, for Article 1 of the International Covenant on Civil and Political Rights gives ‘peoples’ the right to self-determination,248 while an internationally accepted deﬁnition of terrorism (and how it is to be distinguished from acts perpetrated by those seeking self-determination) is still awaited. Thus, one was left balancing the right to self-determination against other human rights that terrorist acts might violate, such as the right to life.249 On the other hand, it is worth noting that India submitted a Draft comprehensive convention on international terrorism in 2000.250 It did not excuse those seeking self-determination, although Article 3 provided that “Convention shall not apply where the offence is committed within a single State, the alleged 246

247

248

249

250

UNGA Res.3034 (XXVII), 1972. See also, UNGA Res.31/102, 1976; UNGA Res.32/147, 1977; UNGA Res.34/145, 1979; UNGA Res.36/109, 1981; UNGA Res.38/130, 1983; UNGA Res.61/40, 1985; UNGA Res.44/29, 1989; UNGA Res.46/51, 1991; cf. UNGA Res.48/122, 1993. UNGA Res.48/122 (1993). See also, Terrorism and human rights, Second progress report prepared by Ms. Kalliopi K. Koufa, Special Rapporteur, E/CN.4/Sub.2/2002/35, 17 July 2002; Speciﬁc Human Rights Issues: New Priorities, in Particular Terrorism and Counter-Terrorism: A preliminary framework draft of principles and guidelines concerning human rights and terrorism, Expanded working paper by Kalliopi K. Koufa, E/CN.4/Sub.2/2005/39, 22 June 2005; and see E/CN.4/Sub.2/2005/43, 9 August 2005. Hoffman, Human Rights and Terrorism, 26 HRQ 932 (2004). UNGA Res.2200A (XXI) (1966); 999 UNTS 171; 6 INT.LEG.MAT. 368 (1967); 61 AM.J INT’L L 870 (1967). Western Sahara Case, Advisory Opinion, 1975 ICJ Rep. 12 Cf. HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT (1994); Henkin, THE INTERNATIONAL BILL OF RIGHTS, Ch.4 (1981); Gros Espiell, The Right to SelfDetermination: Implementation of UN Resolutions, UN Doc.E/CN.4/Sub.2/390 (1980); Shaw, THE TITLE TO TERRITORY IN AFRICA, (1986); Epps, The New Dynamics of SelfDetermination, 3 ILSA J.INT’L & COMP.L 433, esp. pp. 435–36 (1997); Kirgis, The Degrees of Self-Determination in the United Nations Era, 88 AM.J INT’L L 304 at p. 306 (1994). In conclusion, an argument may be made that UNGA Res.48/122 (1993) refers to ‘human rights’, while Article 1 ICCPR is a right of ‘peoples’, but in this context the distinction is ﬁne. Rodley, ‘Can armed opposition groups violate human rights?’ in MAHONEYAND MAHONEY, HUMAN RIGHTS IN THE 21ST CENTURY: A GLOBAL CHALLENGE, 1993, at pp. 297 et seq. UN Doc.A/C.6/55/1, 28 August 2000. See also, Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN Doc.A/57/37, 2002.

The Political Offence Exemption

237

offender is a national of that State and is present in the territory of that State and no other State has a basis . . . to exercise jurisdiction”. As such, those seeking selfdetermination may well be outside the scope of the treaty’s provisions that criminalize terrorism (Article 2) and exclude it from the political offence exemption (Article 14). Moreover, since before251 and especially after 11 September 2001, there has been more forthright condemnation of terrorism by the United Nations. United Nations Security Council Resolution 1373 (2001)252 declared: 5. . . . that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly ﬁnancing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations;

UNSC Resolution 1377 (2001) of 12 November 2001 nuanced the wording slightly indicating that it was international terrorism that was contrary to the purposes and principles of the United Nations, not all terrorism.253 However, subsequent Resolutions have dealt with acts of terrorism in similar language that were apparently domestic.254 To date, the international community has appeared inconsistent in dealing with legal responses to terrorism. Judge Sofaer, formerly of the U.S. State Department, has gone further. 251 252

253

254

See UNGA Res.55/158, 30 January 2001. 28 September 2001, reafﬁrming UNSC Res.1368 (2001) of 12 September 2001 which had declared that it regarded the events of 11 September 2001, “like any act of international terrorism, as a threat to international peace and security”. The United Nations Security Council also established the Counter-Terrorism Committee that has recognized the link between respecting human rights and countering terrorism – see UNSC S/PV.4453, 18 January 2002. Even this Resolution has references to international terrorism and ordinary terrorism: Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-ﬁrst century, Further declares that acts of international terrorism constitute a challenge to all States and to all of humanity, ... Stresses that acts of international terrorism are contrary to the purposes and principles of the Charter of the United Nations, Cf. “Reafﬁrms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustiﬁable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, ... Underlines that acts of terrorism endanger innocent lives and the dignity and security of human beings everywhere, threaten the social and economic development of all States and undermine global stability and prosperity,” (emphasis added). Nevertheless, it is only international terrorism that is a threat to international peace and security and contrary to the purposes and principles of the United Nations. UNSC Res.1465 (2003), 13 February 2003, dealt with a bomb attack in the Colombian capital, Bogota, which, while horriﬁc in nature seems to have been domestic, yet the Resolution nevertheless condemns terrorist acts as a threat to international peace and security. See also, Sossai, The Internal Conﬂict in Colombia and the Fight against Terrorism: UN Security Council Resolution 1465 (2003) and Further Developments, 3 JICJ 253 (2005).

238

Chapter 5 The law applicable to terrorism is not merely ﬂawed, it is perverse. The rules and declarations seemingly designed to curb terrorism have regularly included provisions that demonstrate the absence of international agreement on the propriety of regulating terrorist activity. On some issues the law leaves political violence unregulated. On other issues the law is ambivalent, providing a basis for conﬂicting argument as to its purpose. At its worst the law has, in important ways, actually served to legitimise international terror, and to protect terrorists from punishment as criminals.255

It should be noted, though, that certain reports from the United Nations made it clear even before 11 September 2001 that there must be limits to the activities of any group, no matter how noble its ultimate aim. Even when the use of force is legally and morally justiﬁed, there are some means, as in every form of human conﬂict, which must not be used.256

Therefore, while there would seem to be no doubt that some forms of ‘terrorism’ should be outside the ambit of the political offence exemption, the difﬁculty is in deciding which precise forms.257 It needs to be recognized, moreover, that any analysis of the exemption must take account of Sofaer’s implicit assumption about its purpose and scope. If civilised society is to defend itself against terrorist violence, some offences must fall outside the scope of the exception, even though they are politically motivated.

Sofaer’s allusion to ‘civilised society’ raised, in a very crude and pejorative manner, a so far unmentioned facet of the debate on terrorism and the political offence, that is, that western industrialised society perceives itself as having borne the brunt of urban terrorism in the last thirty to forty years. For instance, in 1984 there were 597 international terrorist incidents worldwide. Of those 597 incidents, 230 or more were recorded in Western Europe.258 On the other hand, if one takes into account State sponsored terrorism by governments supported by governments in the West, such as Pinochet’s Chile in the 1970s and 1980s, then picture of the West as victim is seen to be a somewhat one-sided view. Furthermore, the attacks on the United States embassies in Kenya and Tanzania in 1998 killed many more local nationals than United States citizens. The archetypal attack on western industrial-

255 256

257 258

See Cassese, infra n265, at p. 589. Secretary-General’s Report on Terrorism, 27 U.N.G.A.O.R. A/C6/418 (1972). See also, Report of the Ad Hoc Committee on International Terrorism, 28 U.N.G.A.O.R. Supp.No.28 (A/2098) paras. 22–26 (1973). See the judgment of Walsh J in Finucane, supra n189. These and any of the following statistics are taken from PATTERNS OF INTERNATIONAL TERRORISM, published by the U.S. Department of State. For further statistics, see MURPHY, supra n220, Ch. 5.

The Political Offence Exemption

239

ized society, that on the World Trade Center in New York on 11 September 2001, killed people from all parts of the world and gave rise to a sense of global unity against ‘terrorism’ – since September 2001, there have been attacks in Bali, Indonesia that were aimed at tourists from Australia and some other western States, and diplomats from Arab States have been targeted in Iraq for collaborating with the Coalition led invasion. Nevertheless, it was natural, that countries in Western Europe should have been at the forefront of the ﬁght to bring ‘fugitive terrorists’, as they are categorised by western industrialised society, to justice.259 The birthplace of the political offence exemption found that it had to redraw the boundaries of the test to protect itself – the homogeneity and cohesiveness of western industrialised society’s leaders lead to a desire to preserve the status quo.260 Any new deﬁnition of the ambit of the exemption is likely to favour the State rather than the individual, at least as regards western industrialised society. Realistically, it must be conceded that within western industrialised society the idea of terroristic offences being regarded as political in character is not acceptable. In fact, the exemption may be redundant in toto in western industrialised society. The State of refuge has the sole discretion of recognising or rejecting the relator’s contention that his alleged conduct falls within the scope of the political offence exemption to extradition, but it does so in accordance with its own self-serving standards.261

In these times, it is increasingly apparent that the exemption as operated by courts in Western Europe and North America is being exercised mainly in the national interest of the liberal-democratic State and not necessarily for the protection of the fundamental rights of each individual.262 ‘Terrorism’ threatens the State and, so, it is classiﬁed as outside the ambit of the protection. Some would suggest, though, to give the other side of the argument, that terrorism is deﬁned as anything which

259

260

261 262

Of course, it all depends on your deﬁnition of terrorism as to whom has suffered most: the activities of the South African-backed MNR in Mozambique, when Pretoria was seeking to preserve its apartheid regime by destabilizing front-line States, would rival, in terms of sheer quantity and brutality, the incidents in Europe. See remarks on Castioni, supra n164; ECST, supra n89; Croissant, supra n152; Piperno and Pace, supra n152; Cheng, supra n12; Tuite, The Guardian p. 2, 14 JUL 1982 & p. 2, 3 MAY 1983; McGlinchey v Wren, supra n162; Quinn, [1985] IR 322; See also Re State of Wisconsin and Armstrong, [1972] 3 OR 229, 10 CCC (2d) 271, [1972] FC 1228 (CA). One wonders whether the autocratic despots of nineteenth century Europe would smile quietly to themselves if they could see the way the liberal-democratic safe-havens of their era now rail against countries harbouring terrorists. Bassiouni, infra n266, at p. 224. And see the discussion on possible responses below. State of Japan v Mitsuyo and Takao Kono, 59 INT’L L REP.472 at 474–75 (1968). NB. In Brogan v United Kingdom, Series A, Vol.145–B, at para. 61, the Court held that it could take account of the context of the then terrorism in Northern Ireland in assessing implementation of the rights in question.

240

Chapter 5

threatens the status quo in western industrialised society, not necessarily the State but rather the liberal-democratic form of government of the day.263 And yet, it may be right that the protection of the exemption should not be extended to persons who wish to replace governments which protect human rights and fundamental freedoms and in which there is a free electoral process by which policies might be challenged. There is no simple answer to the question of how to balance rights, in the same way that there is no agreed deﬁnition of terrorism. In practice, terrorism is still just a blanket term for many violent acts and, as such, is too imprecise to aid a critical analysis of the scope of the political offence exemption. It adds little to the jurisprudence of extradition law to suggest that terrorism should not be regarded as political in character, because there is no agreement, in the ﬁrst place, as to what constitutes terrorism.264 Consensus at an international level is still some distance ahead.265 These problems highlight the dependence of law upon the political order in which it operates, for successful deﬁnition must be based upon agreement as to the nature of the phenomenon to be described, and at an international level there is widespread disagreement as to the circumstances in which it is lawful to use violence for political ends.266

Terrorism is not a legal concept that can be examined in such a way that it is possible to deﬁne those instances when it is within and those when it is outside the political offence exemption. It is truly a ‘hot issue’.

263

264

265

266

Cf. Pyle, ‘The Political Offense Exception’, at p. 185 of BASSIOUNI, LEGAL RESPONSES, supra n237, where he argues that the “moral right of self-determination recognised in the American Declaration of Independence was not a right to establish a ‘democracy’ or ‘a republic’. It was a right to institute any form of government which ‘shall seem most likely to effect their Safety and Happiness’.” Pyle’s arguments are somewhat naive given the involvement of the U.S.A. in the overthrow of regimes of which it does not approve; viz. Chile in 1973. See also, HONDERICH, THREE ESSAYS ON POLITICAL VIOLENCE, (1976), esp. at pp. 92–96. RAWLS, A THEORY OF JUSTICE, (1972), pp. 75 et seq., and POLITICAL LIBERALISM, (1993), pp. 133 et seq. Having undertaken an admirable and critical review of the English understanding of the political offence exemption and the proportionality test, in line with much of the analysis suggested in this author’s earlier work Aspects of Extradition Law (1991), Lord Mustill in a minority opinion in T, supra n87, lamely argues in less than one page that the political offence exemption should be premised on whether the crime constituted an act of ‘terrorism’ – at 885g–886e. Cassese, The International Community’s ‘Legal’Response to Terrorism, 38 INT’L & COMP. LQ 589 at pp. 605–06 (1989). Cf. LODGE, supra n13, at p. 195. See also IBRAHIM ABU-LUGHAD, UNCONVENTIONAL VIOLENCE AND INTERNATIONAL POLITICS, cited in LODGE, Ch. 8, n3; MURPHY, supra n220, at p. 4; Bassiouni, Ideologically motivated offences and the political offence exception in extradition – a proposed juridical standard for an unruly problem, 19 DE PAUL L REV.217 (1969) at pp. 222–23; Lockwood, The Model American Convention on the Prevention and Punishment of Certain Forms of Violence Jeopardizing Fundamental Rights and Freedoms, 13 RUTGERS LJ 579 (1982); Lillich, infra n402.

The Political Offence Exemption

241

Nevertheless, one U.S. judge has tried to provide a set of criteria by which to decide whether a violent, politically-oriented crime falls within the exemption. The court must assess the nature of the act, the context in which it is committed, the status of the party committing the act, the nature of the organisation on whose behalf it is committed, and the particularised circumstances of the place where the act takes place.267

Does such an analysis provide a solution to the problem of applying the political offence exemption to terrorism? Is it possible to categorise, classify and distinguish different types of terrorist? Terrorist groups, on this understanding, may be classiﬁed as ‘pure terrorists’ (bad) and ‘self determinists’ (good). This obvious distinction between those terrorist groups with nationalist or self-determinist aims268 and those groups indulging in terror to destabilise through the intimidation of the general public269 would then restore to States all the discretion open to them before entering into any international anti-terrorist obligations. It has to be accepted, though, that an approach of this nature would still be fraught with the difﬁculty of making political distinctions between fugitives who may have committed very similar crimes. What [nationalist terrorist groups] and other, less structured terrorist groups have in common is far more signiﬁcant in applying the political offence exemption than the ways in which they may differ. All these groups exhibit a willingness to engage in the indiscriminate killing of people to achieve political ends.270

To conclude, in some cases, for a variety of reasons, including even economics and history,271 the exemption has been cast so wide as to give rise to controversy. It may be that the majority of fugitives who have indulged in terroristic crimes are extradited, but the publicity given to those cases where the minority are protected has led to governmental activity272 on an unprecedented (and possibly unnecessary)

267

268 269 270

271

272

Per Sprizzo DJ in Doherty, supra n118. McCarthy J in Shannon v Fanning, supra n169, provided a similar set of guidelines at 597–98. See LODGE, supra n13, Ch. 6. E.g. Baader-Meinhof in the 1970s in the former West Germany. Prepared statement of Judge Sofaer, Legal Adviser, US State Department at the Senate Hearing on the Anglo-US Supplementary Extradition Treaty, S.HRG 99–703 re TR.DOC.99–8, 1 August 1985, at p. 263. See, Abu Daoud, supra n9, who was probably freed partly due to French economic interests in the Arab World. Until recently the French government would defend its liberal asylum policy on the basis of its nineteenth century practice. See In re Holder and Kerkhow, cited by Carbonneau supra n41, at p. 22. See also the different attitude by the French Conseil d’Etat in Aff. Gouvernement Suisse, supra n16. See for instance, the European Union Terror Action Plan, The Guardian p. 18, 1 MAR 2004; pp. 1 and 2, 25 MAR 2004; p. 13, 26 MAR 2004.

242

Chapter 5

scale.273 The danger of over-reaction is ever present. The words of the German Federal Criminal Court in Mounir al-Motassadek’s appeal against his conviction for being an accessory to over 3000 murders on 11 September 2001 ought to borne in mind when reviewing the scope of the political offence exemption. The ﬁght against terrorism cannot be a wild, unjust war. . . . A conﬂict between the security interests of the executive and the rights to defence of the accused cannot be resolved to the disadvantage of the accused.274

Terrorism is undoubtedly a major problem facing the exemption, but, it should be noted that it is not the only one.

5.3 Asylum Seekers Difﬁculties arise for the traditional test when no political uprising or disturbance exists, but the requested fugitive committed a crime in trying to seek asylum. The asylum issue also arises where the system of justice in the requesting State is not beyond criticism. Asylum and extradition have to be distinguished, though.275 The issue of extradition is decided on the basis of the treaty binding the two States or, in the absence of a treaty, on their customary reciprocal relations. The issue of asylum is considered a question of internal law, for it is deemed an immigration matter which is beyond the scope of the extradition question which may arise under international law.276

However, alongside the standard political offence case there developed a need to deal with political refugees who, in escaping from the State of dispute, committed a crime.277 This separate line of cases, which rejected extradition “if only for rea273

274 275

276

277

Furthermore, it has given rise to fugitives being returned by means other than extradition in order to evade the exemption. Extradition may be the established method of rendition, but it is by no means a convenient method or, indeed, a popular method. In a . . . study of 231 instances of rendition of persons charged with international terrorist offences, it was found that only 6 out of 87 extradition requests were granted; on the other hand, 145 terrorists were expelled by 28 States. Evans, supra n3, at p. 276. Presiding Judge Klaus Tolksdorf, BBC News website 3531501.stm, 2004/03/04 17:15:12. Viz. T, supra n87. Asylum might be a domestic law issue, but refugee status and complementary protection rely on the Convention Relating to the Status of Refugees 1951 and international human rights law obligations. Article 1F of the 1951 Convention excludes those who have committed serious non-political crimes before entering the country where they seek protection. Bassiouni, supra n266, at p. 234. France granted asylum to an Italian Red Brigades terrorist who renounced violence in 1990 because of French concerns about Italian procedures. He could not subsequently be extradited when France reversed its former policy – The Guardian p. 11, 17 FEB 2004. E.g. Kolczynski, supra n11, The Hungarian Deserter (Austria) Case, 28 INT’L L REP.343, and Kavic, Bjelanovic and Arsenijevic, supra n156.

The Political Offence Exemption

243

sons of humanity”,278 has created confusion amongst commentators trying to ﬁt the decisions within the original incidence test. The problem, as Wijngaert points out,279 is that simultaneously the exemption needs to be narrowed, but also broadened. One subsidiary beneﬁt of some of the proposed amendments to the exemption, though, is that the asylum issue would be integrated into the political offence test, which should reduce the scope for confusion. The very greatness of the danger illustrates the continuing positive function of political asylum. Free political competition on an international level is a weapon, however small, in the ﬁght against the coming universal barbarity. This may also be the reason why, after each new deluge, which seemingly swept away political asylum, it staged a comeback. A necessary institution in a deeply divided world, political asylum sets limits – imperfect, broken, movable, but nevertheless tangible limits – to any regime’s power.280

Political asylum is considered below in Chapter Eight, but it is yet another issue that needs to be addressed by the present political offence exemption. Its importance cannot be overestimated, for no-one questions that it should be part of the requirements of any reformulated test – indeed, there are some who would limit the exemption only to cases where asylum should be offered. As things stand, Stein’s research showed that if the court decides the fugitive needs asylum, then the offence will always be deemed political.281 The explicit inclusion of this requirement, furthermore, would be a salutary move for it should curb the excesses of the operation of the exemption. For example, in deciding matters of asylum, the UNHCR set out the following test. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is more difﬁcult to accept if it involves acts of an atrocious nature.282

The express adoption of asylum principles when assessing the political character of an offence, on the above test, recognises the Swiss proportionality requirement and the humanitarian issues surrounding the granting of political refuge. Indeed,

278 279 280

281 282

Kolczynski, supra n11, at 551 per Lord Goddard CJ. Supra n6, at pp. 197–98. KIRCHHEIMER, POLITICAL JUSTICE: THE USE OF LEGAL PROCEDURE FOR POLITICAL ENDS, p. 388, (1961). And see WIJNGAERT, supra n6, at p. 204, n107. Supra n7, at p. 379. United Nations High Commissioner for Refugees, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, para. 152 (1979); hereinafter HANDBOOK. See also, UNHCR Guidelines on International Protection: Application of the Exclusion Clauses, HCR/GIP/03/05, 4 September 2003, and Background Note issued at the same time.

244

Chapter 5

the leading House of Lords case on the political offence exemption, which incorporated proportionality, was not to do with an extradition request, but an application for refugee status from a member of FIS from Algeria.283 If asylum matters are now incorporated with some thought, it may well assist the operation of the political offence exemption, generally, in the future.

5.4 Politically Motivated Requests The ﬁnal group of fugitives who have attempted to raise the political offence exemption is not simple to pin down. They allege that although their crime may be totally apolitical and that although their trial would be completely impartial, they should still not be extradited because the government of the requesting State has an underlying interest, usually covert, in seeking their return.284 One particular sub-group consists of those who committed their crimes as ofﬁcials of the former government of the State. The archetypal example of a transnational fugitive offender seeking protection under the political offence exemption is that of the failed revolutionary now being requested by the State – however, sometimes revolutions succeed, whereupon it might be the former Head of State who is the object of an extradition request. The crime, as such, for which extradition is requested could well have been a measure taken to attempt to ensure the continuance of the former government and ‘legal’ under that regime’s laws. Nevertheless, certain acts will be treated as criminal regardless of the laws in force at the time according to the International Military Tribunal at Nuremberg, if the perpetrator must have known that what he did was wrong:285 [It] is to be observed that the maxim nullem crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in deﬁance of treaties and assurances have attacked neighbouring States without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. . . . The [IMT] proposes, therefore, to deal quite generally with the question of War Crimes. . . . Prisoners of war were ill-treated and tortured and murdered, not only in deﬁance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity

283

284

285

T, supra n87. See also, Re Gil and the Minister of Employment and Immigration 119 DLR (4th) 497 (1994). Former President Menem of Argentina claimed that a request to Chile, where he was then living, with respect to corruption was to thwart his chances in the 2007 Argentine presidential elections – The Guardian p. 14, 22 APR 2004. In similar vein, the extradition request with respect to corruption and human rights abuse charges by Lima to Santiago for former President Fujimori of Peru when he arrived in Chile will undoubtedly raise comparable claims – BBC News website 4415740.stm, 2005/11/08 15:17:02; 4557184.stm, 2005/12/23 23:25:21; 4758136.stm, 2006/01/03 16:13:04; and The Guardian p. 24, 8 NOV 2005; p. 19, 17 NOV 2005. See the IMT’s Judgment in 41 AM.J INT’L L 172 at pp. 217 and 225 (1947).

The Political Offence Exemption

245

In the Border Guards Prosecution Case,286 the German Federal Supreme Court held that while the guards at the Berlin Wall had been mandated by the laws of the former German Democratic Republic to operate a shoot to kill policy against those attempting to cross into the then West Berlin, this was no defence to a charge of unlawful homicide post-uniﬁcation. A defence which was accepted as such at the material time may be considered irrelevant on the ground that it violates a superior rule of law, only if it represents a manifestly gross violation of fundamental concepts of justice and humanity. The violation must be so serious that it infringes those legal principles concerning human worth and dignity which are common to all people. . . . The conﬂict between the law as enacted and the requirements of justice must be so intolerable that such a law must yield to the requirements of justice, since it is an improper law (Radbruch, SJZ, 1946, 105 at 107). Such a formulation was used after the end of the Nazi tyranny in an attempt to categorize the most serious breaches of the law. Transposing that test to the present case is not easy, because the killing of people at the Berlin Wall cannot be equated with the mass murder committed by the Nazis. Nevertheless, the understanding gained at that time is still valid. When appraising acts committed on the orders of the State, it must be asked whether the State has exceeded the outer limit set for it by general principles everywhere.

The fact that the fugitive was a State ofﬁcial should not affect the applicability of the political offence exemption. The District Court in Suarez-Mason287 argued that the political offence exemption should be restricted to rebels, but this approach has not received widespread acceptance. In Artukovic,288 one sees a decision which cannot be justiﬁed, not because the fugitive was Minister of the Interior of the Axis-controlled Croat government, but because of the nature of his crimes.289 Furthermore, inasmuch as the former government ofﬁcial is the analogue of the former rebel, the ﬁrst-mentioned is no more likely to be prejudiced at his trial than the latter, for in neither case can the central government stand apart.290 In Jimenez v Aristeguieta,291 the former President of Venezuela was requested on, inter alia, corruption charges from the United States. There was no political element to any of the crimes other than the former ofﬁce of the fugitive and the exemption was denied to him.292 Suarez-Mason293 considered the fugitive’s claim of a political character 286 287 288 289 290 291 292

293

100 INT’L L REP.364 at 380. See also, Rytter, No Punishment Without Guilt, 21 NQHR 39 (2003). In the Matter of the Extradition of Suarez-Mason 694 F.Supp 676 at 704–05 (1988). Supra n118. See Artukovic v Rison, supra n131. See Schtraks, supra n54, at 591–92, and GRIFFITH, infra n494, at pp. 292 and 343. 311 F.2d 547 (1962). Jimenez’s assertion of the political offence exemption was rejected because there was no political uprising, a pre-condition under the U.S. test, at the time of the corrupt payments – supra n118, at 560. See also, Guatemala’s request to Mexico for former President Alfonso Portillo on corruption charges – BBC News website 4395332.stm, 2005/11/01 10:52:24. Supra n287, at 705–07.

246

Chapter 5

to his crimes in the alternative, but, following Quinn v Robinson,294 found the homicides and kidnappings during Argentina’s ‘Dirty War’ to have no rational nexus with any uprising and, thus, not to be incidental thereto and, so, outside the exemption. Finally, even where extradition is granted by the courts, the executive still retain the ultimate discretion.295 Beyond former government ofﬁcials, no general approach can be taken towards those who are the object of a politically motivated request, for they do not form a coherent group. Each case must be viewed on its facts. One of the best examples of such a situation is the Sindona case.296 Sindona was requested by the Italian government to answer charges of, inter alia, embezzlement. There was never any claim that the ﬁnancial crimes with which he was charged were intrinsically political or committed for a political purpose. Nor was there any uprising in Italy at that time. However, Sindona alleged that Italy had requested his extradition to question him about high-level corruption and the amorphous P2 Freemason Lodge. In this particular case, the United States’ courts rejected the political offence defence.297 This decision was followed in the very similar case of Koskotas v Roche.298 Extradition proceedings are grounded in principles of international comity, which would be ill-served by requiring foreign governments to submit their purposes and procedures to the scrutiny of United States courts. See Ahmad v Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990). . . . For these reasons “the Secretary of State has sole discretion to determine whether a request for extradition should be denied because it is a subterfuge made for the purpose of punishing the accused for a political crime. . . .” Quinn, 783 F.2d at 789 (emphasis added); see also In re Lincoln, 228 F. 70. Similarly, “the degree of risk to [the relator’s] life from extradition is an issue that properly falls within the exclusive purview of the executive branch.” Ahmad, 910 F.2d at 1066 (quoting Sindona, 619 F.2d at 174). (emphasis added)

As Locatelli299 made clear, U.S. courts will not generally inquire into the motives of the requesting State.300 The British case of Kolczynski,301 as well as falling within the asylum seekers category, would qualify as a case where the requesting State, Poland, had under294 295

296 297 298

299 300

301

Supra n120. See Armah v Government of Ghana [1968] AC 192, and the government’s refusal in The Times p. 11, 26 JAN 1967. See also, Affaire Gouvernement Suisse, supra n16. Sindona v Grant, 461 F.Supp 199 (1978); 619 F.2d 167 (1980). Sindona died of poisoning in an Italian gaol – supra n122. 931 F.2d 169 (1991) – a request by Greece in relation to embezzlement, but related to PASOK, the Greek party of government at the time. See 173–74, esp. 174. Supra n123. Cf. Article 3 of the former Anglo-U.S. Supplementary Treaty, supra n108, and see Smyth, supra n126. See also, Article III(2)(a) of the U.S.-Jamaica Treaty, supra n114, Extradition shall also not be granted if: (a) it is established that extradition is requested for political purposes. Supra n11.

The Political Offence Exemption

247

lying motives for the request which were not evident in the warrant. Another example is Budlong and Kember.302 In this case the United States authorities requested the return of the accused for burglary. The fugitives claimed the offence was political because they were trying to discover ﬁles kept by the U.S. government on the Church of Scientology of which they were members. The British courts rejected the contention that such allegations would be sufﬁcient to categorise the offence as one of a political character. This case has an even stronger political character than Sindona on its facts, but the courts were still unwilling to extend the exemption.303 The fugitive in T v Swiss Federal Prosecutor304 unsuccessfully claimed that the former West German government was seeking his surrender because he was shipping cobalt to Eastern Europe, forbidden for political reasons in the Federal Republic. Again, in Korosi,305 the Italian Court of Cassation rejected the fugitive’s claim that the Czech government was only seeking his return because he was a Hungarian national and there was national antagonism between Czechoslovakia and Hungary. A very extreme example of this type of case is seen in the Swedish Supreme Court’s decision with respect to Gregorian Bivolaru. He was requested by Romania in relation to child trafﬁcking. His application for refugee status was rejected, but the Supreme Court refused to extradite him because it feared that he would be the target of religious and political persecution as the leader of a controversial yoga movement. It was accepted at least in part that the charges were politically motivated.306 However, in Astudillo-Calleja307 the French Conseil d’Etat was prepared to hold that the Spanish government was seeking the return of the fugitive for underlying political reasons. Il est évidemment très délicat de se livrer à une recherche des intentions du Gouvernement espagnol dans cette affaire. Une telle recherche est néanmoins indispensable puisqu’il s’agit de veiller au respect de la disposition ‘la plus importante’ de la loi de 1927. . . . Si l’on se replace dans le climat de l’année 1973, on peut douter que les autorités espagnoles se soient intéressées au cas de M.Astudillo-Calleja au seul motif qu’il avait commis des vols. . . . Et il faut avoir une grande conﬁance dans

302 303

304 305 306

307

Supra n25. Later examples of politically motivated requests to the United Kingdom include Peru seeking the surrender of an apologist for Sendero Luminoso (The Guardian p. 8, 20 MAR 1993), and a German request for Kani Yilmaz, a member of the Kurdish PKK, allegedly for arson, but, in practice, because of his political afﬁliations – The Guardian p. 11, 11 MAY 1995. See also, Zakaev, see Bofaxe 286E, The judgement on the extradition of Zakaev to Russia, 21 January 2004. Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum. Supra n25. [1925–26] Ann.Dig.309. I am grateful to Jyothi Kanics of Danish Save the Children (Red Barnet) for bringing this case to my attention. [1977] DALLOZ (J) 695 at 699 per M.Genevois, Commissaire du Gouvernement.

248

Chapter 5 la règle de droit pour penser qu’une fois l’extradition accordée, les autorités espagnoles alors en fonction se seraient bornées à poursuivre M.Astudillo-Calleja uniquement pour les vols qu’il avait commis. Le but politique est sous-jacent à la demande d’extradition.

However, the approach of Astudillo-Calleja was rejected in Urdiain Cirizar.308 The political motivation of the requesting State would not be a ground for the courts to refuse extradition.309 On the other hand, in Koné,310 the Conseil d’Etat held that if the fugitive had been able to produce evidence of the political purpose of the Mali government behind a request relating to embezzlement, then extradition would have been refused. All the cases reveal a situation where fugitives attempt to gain the protection of the exemption for fear of ulterior motives on the part of the requesting State. As such, it is very unlikely that such claims will ever succeed within the politically cohesive western industrialised society; Astudillo-Calleja and Koné stand alone. As long as the government stands aloof from the trial,311 then it ought not to be possible for a court to refuse extradition, although the executive of the requested State might exercise its discretion in such cases.

5.5 Summary As has been shown, the political offence exemption is raised to protect the transnational fugitive offender in a wide variety of circumstances. Its breadth may be its very downfall, in that it has been sought to use it so widely that no precise or credible interpretation of its scope can now be made. It has outgrown its origins in such a way as to lose its coherence. In fact, it may now be redundant, events having overtaken its value when dealing with transnational fugitive offenders. However, there is no serious doubt that there exists no common intention to abolish it, indeed it is suggested that it ought always to be treated as an essential element of any extradition law. Thus, if it is to be retained in extradition legislation, it is necessary to circumscribe it, adapt it or suspend its operation as best suits the occasion, balancing the protection of human rights with the need to preserve international public order.

308 309 310 311

[1992]:1 AJDA 82, 20 JAN 1992. See Julien-Laferrière, [1992]:1 AJDA 83 at 84. 111 INT’L L REP.543, 3 July 1996. See Viscount Radcliffe’s opinion in Schtraks, supra n54, at 591–92. Schtraks itself is a similar sort of case.

The Political Offence Exemption

249

6. Responses A variety of solutions have been proposed to meet the problems facing the political offence exemption at the end of the twentieth century. The aim of this section is to review such suggestions critically and adopt so much of them as will prove useful. The problems facing the exemption range so widely that no one response will meet all situations. There are two ways that progress might be achieved. The ﬁrst involves retaining the framework of the present structure and amending the scope of the exemption. The second approach is more radical and would take the trial of politically motivated offenders away from the courts of the requesting State. §I

6.1 Abolition and Western Industrialised Society While not accepting the case for a total abolition of the exemption, it has been suggested that a partial or regional restriction might be acceptable within western industrialised society. This view reﬂects the view that the West regards its adherence to liberal-democratic principles, including the right to a fair trial, and to treaties such as the European Convention on Human Rights, as obviating the need for political violence to effect change.312 Une dérogation à l’obligation d’extrader entre pays démocratiques, parties aux même conventions internationales et respectueux des mêmes principes juridiques, est certes exceptionnellement possible, mais elle est une ‘anomalie’ qui ne peut être fondée que sur des motifs impérieux, assumés par les autorités et permettant au juge national d’exercer son contrôle.

However, it should be noted that any regional response may well alienate those States excluded from joining, encouraging more safe havens for terrorists, and, further, it may appear reactionary, detracting from its efforts to combat terrorism. The United Kingdom Extradition Act 2003 has adopted a universal approach toward abolition of the political offence exemption. As stated, it is no longer possible to argue under the Act that extradition ought to be refused because the offence is of a political character no matter which state made the request. However, extradition can still be refused under ss13 and 82 if the transnational fugitive offender has been requested:

312

Consider the reasoning of the Conseil d’Etat in Affaire Gouvernement Suisse, supra n16, at 61–62.

250

Chapter 5 (a) . . . for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.

While one might question whether it was right to do away with the political offence exemption, at least it has not been done selectively. Sofaer in support of the former Anglo-U.S. Supplementary Extradition Treaty313 asserted that the rationale for this new Supplementary Treaty is simple: with respect to violent crimes, the political offence has no place in extradition treaties between stable democracies, in which the political system is available to redress legitimate grievances and the judicial process provides fair treatment. While this particular agreement relates to the United Kingdom, [the government] fully intends to negotiate – and is in the process of negotiating – similar agreements with other nations that meet these criteria.314

While the reasoning is superﬁcially sound, there are problems concerning what constitutes a “stable democracy”, what would happen if there was a change in the political system within a “stable democracy” with which a treaty had been concluded, and how “violent crimes” should be deﬁned.315 Democracy is very much in the eye of the beholder.316 For most people it denotes some form of electoral process where members of the society have a vote that has a bearing on the formation of the legislative assembly. According to Raphael,317 while the etymological roots of ‘democracy’ would indicate that it requires rule by the people, [pure] democracy, a system in which all citizens may join in taking governmental decisions, is rare. . . . In most democratic States, however, democracy has meant representative government. . . . Decision on concrete issues is left to the body of elected representatives, the Legislature, or to a smaller group, the Government or ‘Executive’,

313 314

315

316

317

Supra n108. See the HEARING, supra n270, at p. 265. See also Epps, Abolishing the Political Offense Exception, at pp. 203 et seq. in BASSIOUNI, LEGAL RESPONSES, supra ni237. Cf. STEIN, supra n7, at p. 377. Contrast, Lubet, International Criminal Law and the ‘Ice Nine’Error: A Discourse on the Fallacy of Universal Solutions, 28 VA.J INT’L L 963 (1988), with Paust, ‘Such a Narrow Approach’ Indeed, 29 VA.J INT’L L 413 (1989). See BEETHAM, DEMOCRATIC AUDIT OF THE U.K.: KEY PRINCIPLES AND INDICES OF DEMOCRACY (1993), at p. 6; hereinafter, BEETHAM. And see HONDERICH, supra n263, at pp. 92–96; Wolff, Beyond Tolerance, in WOLFF, BARRINGTON MOORE JR., MARCUSE, A CRITIQUE OF PURE TOLERANCE (1965), at pp. 3 et seq., and SINGER, DEMOCRACYAND DISOBEDIENCE (1973): all three works provide a more radical view of liberal democracy. RAPHAEL, PROBLEMS OF POLITICAL PHILOSOPHY, at pp. 146 et seq., (1976). See also BEETHAM, supra n316, at p. 7.

The Political Offence Exemption

251

acting with the consent of the Legislature. So what we have in practice is oligarchy, government by a few, but an oligarchy elected by the people as a whole and responsible to the people as a whole, responsible in the sense that it can be turned out at the next election and replaced by a different group of rulers.318–319

Sofaer’s conception of democracy, while incorporating this minimum, goes much further and is concerned more with the democratic aims of a society. Since Plato, liberty and equality have been recognised as the distinctive aims of a democratic society.320 The French Revolution added the concept of fraternity, but that has become more associated with utopian socialism, rather than liberal democracy.321 While liberty, in the sense of judicial guarantees of basic rights, is self-evidently part of Sofaer’s view of a democracy, the relevance of equality needs to be explained. Democracy as an electoral process must contain an element of equality in that each person’s vote ought to carry the same weight322 and there must also be equality of liberty, but Rawls323 has taken the essential inter-connectedness of democracy and equality further. From the premise that justice is the “ﬁrst virtue of social institutions”324 and that “laws and institutions, no matter how efﬁcient and well-arranged, must be reformed or abolished if they are unjust” and that “[therefore], in a just society the liberties of equal citizenship are taken as settled. . . .”,325 Rawls goes on to argue that ‘democratic equality’ is a necessary and constituent element. Assuming the framework of institutions required by equal liberty and fair equality of opportunity,326 the higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society.327

Taking democratic equality and the difference principle together, Rawls proposed that the only just way for society to progress would be if any enhancement in the lot of the better-off was matched or improved upon by comparison with those

318

319 320 321 322 323 324 325 326 327

See also, BEETHAM, supra n316, at p. 8. [Democracy] does not mean whatever the people may decide at any given moment; rather it describes a set of rules and procedures for securing their control over decision making or decision makers on an ongoing basis. To put the point most sharply, a people might agree to surrender power to a dictator, but that agreement would not make dictatorship democratic. It could only be described as a democratically arrived at decision to abolish or curtail democracy. RAPHAEL, supra n317, at p. 147. RAPHAEL, supra n317, at p. 143. RAPHAEL, supra n317, at pp. 145–46. See BEETHAM, supra n316, at p. 7. RAWLS 1972, supra n263, esp. at pp. 75 et seq. RAWLS 1972, supra n263, at p. 3. RAWLS 1972, supra n263, at pp. 3–4. That is, liberal equality – see RAWLS 1972, supra n263, at pp. 73–75. RAWLS 1972, supra n263, at p. 75.

252

Chapter 5

worse-off.328 Rawlsian analysis of a just society, and, it is argued, a democratic State, maximises the conditions of all and, thereby, enhances its stability. Thus, discrimination against a particular group in society might raise questions about the essential democratic quality of the State. Moreover, given that discrimination against a particular group in society often leads to the escalation of violence and conditions prone to engender terrorism, the relationship of stable democracy, political violence and the political offence exemption is central to this examination of the possible development of the exemption. Rawls developed further arguments of a more applied nature in his 1993 book, Political Liberalism.329 This new work has particular relevance to a study of the essential elements of stable democracies. We saw at the outset that political liberalism tries to answer the question: how is it possible that there can be a stable and just society whose free and equal citizens are deeply divided by conﬂicting and even incommensurable religious, philosophical and moral doctrines?, . . . [This] stage of the exposition . . . considers how the wellordered democratic society of justice as fairness may establish and preserve unity and stability given the reasonable pluralism characteristic of it.330

The terrorist violence that Sofaer wished to exclude from the political offence exemption is frequently the result of pluralistic societies failing to meet the desires of its minority populations – for instance, the Basques in Spain and the Corsican community in France. It may be that those desires, or the means used to demonstrate dissatisfaction with the status quo, are unreasonable, but in so far as the State fails to respond to grievances caused by perceived injustice amongst groups within its society,331 it fosters instability which may eventually boil over into terrorism. The stable democracy should seek to meet legitimate grievances rather than repress those who are aggrieved. When there is a plurality of reasonable doctrines, it is unreasonable or worse to want to use the sanctions of State power to correct, or to punish, those who disagree with us.332 “Democratic government is based not only upon common citizenship, but upon a recognition of the diversity with which different groups of citizens may choose to express it. Both common citizenship and its diversity may be better realised by some form of ‘power sharing’ or division of power, whether within government or between its different levels, than by simple majoritarianism.”333

328 329 330 331 332 333

Supra n263, at p. 78. Hereinafter, RAWLS 1993, supra n263. RAWLS 1993, supra n263, at pp. 133–34. See RAWLS 1993, supra n263, at p. 137. RAWLS 1993, supra n263, at p. 138. BEETHAM, supra n316, at p. 11.

The Political Offence Exemption

253

According to Rawls, whether a democracy can sustain stability depends on two factors. “[The] ﬁrst is whether people who grow up under just institutions (as the political conception deﬁnes them) acquire a normally sufﬁcient sense of justice so that they generally comply with those institutions. The second . . . is whether in the view of the general facts that characterize a democracy’s public political culture, and in particular the fact of reasonable pluralism, the political conception can be the focus of an overlapping consensus.”334

Even where one group’s views become dominant, there must still be protection for minorities.335 Only in those circumstances can one speak of a stable democracy.336 [We] must frame the institutions of the basic structure so that intractable conﬂicts are unlikely to arise; we must also accept the need for clear and simple principles, the general form and content of which we hope can be publicly understood.337

Beetham puts forward criteria by which to assess the democratic credentials of a society. It is on the basis of such factors that one could judge whether the political offence exemption could be excluded in relation to a particular State, recognising, of course, that ‘democracy’ is not an absolute matter but is dependent on how far those factors have been achieved in practice. The important question is to assess how far the criteria are achieved by whatever mechanisms the individual country has historically chosen to adopt.338

In conclusion, before the political offence exemption is abrogated, the so-called stable democracy must satisfy the requirements of a democracy espoused above. Given, however, that the nature of democracy and its relationship to human rights has now been adequately examined, then it is necessary to consider how far violence is still legitimate within a democracy. Liberal democracies generally allow individuals to advocate violence as part of freedom of speech: it is only when the violence is realised that the behaviour is criminalized.339 If an act is justiﬁably made illegal, this justiﬁcation is not sufﬁcient to prohibit speech advocating such an act, even though the speech could have that as its consequence.

334 335

336 337 338 339

RAWLS 1993, supra n263, at p. 141; see also, pp. 142–43. See BEETHAM AND BOYLE, WHAT IS DEMOCRACY: EIGHTY QUESTIONS AND ANSWERS, Q.62 (1994). See also, Kirgis, The Degrees of Self-Determination in the United Nations Era, 88 AM.J INT’L L 304 (1994). RAWLS 1993, supra n263, at p. 148. RAWLS 1993, supra n263, at p. 156. BEETHAM, supra n316, at p. 13. Leader, Free Speech and the Advocacy of Illegal Action in Law and Political Theory, 82 COLUMBIA L REV.412 at p. 428 (1982). See The Guardian p. 6, 28 SEP 2001; p. 12, 6 SEP 2003.

254

Chapter 5 However, this will only be true when the speaker advocating such action intends to reject or to modify an end the law is serving, or challenges the law as an adequate means to such an end, and the effect of his message is persuasive and not provocative.

However, the focus of this paper is not on the advocacy of violence, but on those who actually perpetrate violence in a liberal democracy – indeed, most modern extradition treaties allow the requested State to refuse the surrender of a fugitive if he would face persecution or punishment on the ground of his political opinion. The argument, as proposed, is that if a State is a true liberal democracy, then violence is otiose. On the other hand, some commentators have suggested that even where the democratic principles expounded upon above are respected, that there are still inadequacies in the system that discriminate against citizens who are, thus, entitled to use violence to achieve equality. Others, not going quite so far, argue that not all actual violence is contrary to democratic ideals. The latter group accept the principle that violence should not be necessary in a liberal democracy, while the former group of commentators consider that democracies do not necessarily obviate the need for violence to meet the needs of all citizens. There are so many legal precautions against violence, and our upbringing is directed towards so weakening our tendencies towards violence, that we are instinctively inclined to think that any act of violence is a manifestation of a return to barbarism. Peace has always been considered the greatest of blessings and the essential condition of all material progress, and it is for this reason that industrial societies have so often been contrasted favourably with the military ones. This last point of view explains why, almost uninterruptedly since the eighteenth century, economists have been in favour of strong central authorities, and have troubled little about political liberties.340 The second question raised at the beginning of this essay was that of how political violence stands to the arguments for democracy. More particularly, how do the ends presupposed in these arguments stand in relation to political violence? We may approach the question by remembering that while democratic systems do make for some realization of the speciﬁed ends, they do not always do so. Historically speaking, democratic systems have not always advanced progress towards the ends of freedom and equality. They have sometimes impeded that progress. This has had to do, in part, with permanent minorities, non-accredited groups in pluralist systems, and the failure of democratic governments to respond to the intensity of distress, as distinct from its extent. It is an obvious fact that democracy has not always served progress toward the ends for Blacks in America and Catholics in the province of Ulster. This has been a question of some of the forms of freedom and some of the forms of equality.341

340

341

SOREL, REFLECTIONS ON VIOLENCE, (trans. Hulme and Roth, 1950) at p. 202. See also, WOLFF, THE RULE OF LAW, (1971) at pp. 54–55. HONDERICH, supra n263, at p. 108.

The Political Offence Exemption

255

Adherents of such a philosophy would reject outright Sofaer’s thesis342 on the need to restrict the scope of the political offence exemption to non-violent offences when the requesting State is a stable democracy. For them, stable democracies do not offer such guarantees of citizens’ rights that violent struggle can be dispensed with. However, without going that far, it is possible to argue that even within democracies violence can on occasions be justiﬁed.343 Nevertheless, there are occasions when violence is justiﬁed even in a liberal democracy and where the political offence exemption might be available for violent crimes committed against the State. Rawls would allow civil disobedience in order to achieve justice within society.344 However, according to Rawls, such disobedience is to be non-violent and it is only justiﬁed where there is a shared conception of justice in the society. With so many constraints, especially the requirement that the society already possess a shared conception of justice, it is hard to imagine that Rawls’ analysis would ever apply to a real situation.345 Honderich, on the other hand, holds that there is a moral justiﬁcation for some form of “democratic violence”.346 It can be said for some political violence that it serves the ends of freedom, or equality, or both. One may argue for, although not necessarily justify, such violence as serving the ends which are also the ends of the practice of democracy, a practice which by deﬁnition is non-violent. Thus the fundamental arguments for the practice of democracy may also be used in defence of some political violence. . . . The proposition that violence does as a matter of fact promote progress toward freedom and equality in some circumstances can hardly be questioned.347

Honderich goes on to distinguish between coercion of force and coercion of persuasion. The latter allows for reﬂection and judgement by the target of the violent act. He admits that the distinction might be hard to draw in practice, but is essential if one is to permit democratic violence. However, one of his examples highlights the confusion: a bomb attack in Northern Ireland does not force the British government to change its policy towards the minority population, it can reach a reasoned decision, but it might force the shopkeeper whose premises are bombed to move his business. While the government’s response is separate from the victim’s suffering, the interrelatedness of the two events would militate against treating the bombing as democratic violence. Two of Honderich’s other criteria are that the

342 343

344 345 346 347

Supra n270. See Paust, An Introduction to and Commentary on Terrorism and the Law, 19 CONN.L REV.697 at pp. 705–06 and 741–43 (1987). RAWLS 1972, supra n263, at p. 364. Rawls, of course, recognises this. HONDERICH, supra n263, at p. 109. HONDERICH, supra n263, at pp. 109–10. See also Article 7 of the 1974 Resolution on Aggression, supra n212.

256

Chapter 5

violence be used to provide approximately equal inﬂuence in society and that the end result of the violence is a fuller realization of democratic ends.348 However, Honderich’s analysis lacks any element of proportionality and is, thus, inadequate.349 Before the violence be accorded democratic status, then the ultimate end of improving on the democracy within the society must justify the type of violence – murder, for instance, should only be justiﬁed in the most extreme circumstances, circumstances unlikely ever to arise in a stable democracy.350 Wolff, for his part, meets the objection that the violence be proportionate, but criticises the requirement on the ground that, in his eyes, it is based on the false premise that government’s have legitimate authority. When is it permissible to resort to violence in politics? If ‘violence’ is taken to mean an unjustiﬁed use of force, then the answer to the question is obviously never. If the use of force were permissible, it would not, by deﬁnition, be violence, and if it were violent, it would not, by deﬁnition, be permissible. If ‘violence’ is taken in the strict sense to mean ‘an illegitimate or unauthorized use of force’, then every political act, whether by private parties or by agents of the State, is violent, for there is no such thing as legitimate authority. If ‘violence’ is construed in the restricted sense as ‘bodily interference or the direct inﬂiction of physical harm’, then the obvious but correct rule is to resort to violence when less harmful or costly means fail, providing always that the balance of good and evil produced is superior to that promised by any available alternative. . . . These answers are all trivial, but that is precisely my point. Once the concept of violence is seen to rest on the unfounded distinction between legitimate and illegitimate political authority, the question of the appropriateness of violence simply dissolves. . . . We would all agree, I think, that under a dictatorship men have the right to defy the State or even to attack its representatives when their interests are denied and their needs ignored – the only rule that binds them is the general caution against doing more harm than they accomplish good. My purpose here is simply to argue that a modern industrial democracy, whatever merits it may have, is in this regard no different from a dictatorship. No special authority attaches to the laws of a representative, majoritarian State; it is only superstition and the myth of legitimacy that invests the judge, the policeman, [the Legal Adviser to the U.S. State Department], or the ofﬁcial with an exclusive right to the exercise of certain kinds of force.351

Wolff’s anarchist views352 would reject the very system on which extradition is premised, the international community of sovereign States; no State can be superior to the individual in his eyes. However, it can be extrapolated from his arguments that where a democracy is failing to meet its own ends, violence is per348

349 350 351

352

Honderich’s fourth characteristic, that the violence be not directed towards the “destruction of the democratic system”, supra n263, at p. 114, would seem to add nothing to the idea that the violence effect greater democratization of society. Apart from one line at the very end of the book, supra n263, at p. 116. Viz. Pavan, supra n157. WOLFF, supra n340, at pp. 62–63, 64, with this author’s additional comment as regards Sofaer’s ideas on stable democracies. Supra n340, at pp. 60–61.

The Political Offence Exemption

257

missible given that it is proportionate to the ultimate goals of democracy itself; thus, violent action ought not to be absolutely outlawed vis à vis stable democracies. Moreover, if one moves from theories of democratic societies to actual practice in the so-called stable democracies, then there is a wider gap between what citizens should expect of the State and their experience of discrimination and imbalance of power and inﬂuence.353 Political theory would allow violent action, therefore, in limited circumstances where the State was not fulﬁlling its democratic credentials and the action was proportionate to that level of failure. While there is no doubt that if arrested for the violent activity in the State where it was perpetrated, the offender would have no defence that the crime was motivated by a desire for greater democracy. Modern extradition, however, is premised on States not surrendering fugitive offenders who have carried out political crimes. Sofaer’s analysis354 is an attempt to restrict this principle where the requesting State is a stable democracy, but, on its own, that fact would not be an adequate justiﬁcation for the restriction from the point of view of political theorists, even for non-radical commentators. From the point of view of the lawyer, the traditional discretion of the political offence exemption may, therefore, be supportable and preferable to a blanket ban: most crimes would be outside the political offence exemption, but the courts of the requested State would retain a discretion where the act was designed to further the democratic ideals considered above, was proportionate and was not too remote from the ultimate goals of democratic societies. In addition to this analysis of the limits of violence and democracy founded in political science, comparison might also be made with the legal analysis surrounding when it is justiﬁed to derogate from human rights norms because of a state of emergency – such represents the legal understanding of the limits of a State’s right to curb violent activity in a democracy by generally restricting citizens’ rights, the corollary of constraints on violent protest in democracies. The international human rights agreements recognize that in certain extreme conditions a State may derogate from its obligations.355 As such, it is derogating from its democratic status. The circumstances would include situations where violent protest had reached a certain level of intensity. Thus, there is a close inter-relationship between democracy, especially stable democracies, violent protest and derogations from human rights norms. In summary, violence is not wholly without its purpose even in so-called stable democracies. The justiﬁcation for the limitation seen in the various extradition treaties, therefore, is not made out. On the other hand, if the requesting State fulﬁls the test of democracy set out above, then it may be that limiting the political offence exemption along the lines considered is nevertheless acceptable. 353 354 355

See SINGER, supra n316, especially at pp. 134–35. Supra n270. Higgins, Derogations under Human Rights Treaties, 48 BRIT. YB INT’L L 281 (1976–77).

258

Chapter 5

Nonetheless, questions as to the quality of the democracy in speciﬁc States are unlikely to hinder or deter judges or politicians seeking to combat terrorism. The French Cour d’Appel at Douai,356 as mentioned above, was prepared to grant extradition to Italy on the ground that an offence should not be deemed political where the object of the transnational fugitive offender was to destroy the democratic order and overthrow the economic and social order of a liberal-democratic country which was a party to the ECHR. In fact, the exemption has been so constrained in recent years in, for example, the ECST and its Protocol, that its outright abolition might be possible within Europe, if not western industrialised society as a whole. The European Union’s 1996 Convention relating to Extradition between Member States,357 provided in its preamble that extradition should operate rapidly and efﬁciently because the governments of the member States are all democracies and comply with the obligations laid down in the ECHR. To that end, Article 5 established that: 1. For the purposes of applying this Convention, no offence may be regarded by the requested Member State as a political offence, as an offence connected with a political offence or an offence inspired by political motives.

The European Arrest Warrant358 does not include an exemption for political offenders with respect to surrender within the European Union.359 Moreover, the Council of Europe’s 2003 Amending Protocol to the ECST360 imposes duties on States exercising reservations under Article 13 of the original 1977 ECST. Once the Protocol

356 357 358

359

360

Supra n208. OJ 96 C 313/02 of 27 September 1996. OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). However, paragraphs 12 and 13 of the Preamble provide the following safeguards. (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reﬂected in the Charter of Fundamental Rights of the European Union (1), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. ETS 190 (2003), discussed below.

The Political Offence Exemption

259

is in force, exercise of a reservation will require the court to give reasons and, while renewable, reservations are to last for three years.361 Wijngaert362 has suggested that the trial in the Netherlands of the South Moluccans, responsible for a ‘trainjacking’ and the occupation of a school in Bovensmilde, was completely fair and impartial, despite the element of terrorism: given that abolition would be predicated on the fugitive political offender receiving a fair trial in the requesting State instead, then it should be possible on the basis of the Bovensmilde incident for the Netherlands to abolish the political offence exemption. On the other hand, although fair trial is part of the ethos of the political offence exemption, the exemption goes much further and may well have become part of the ‘folklaw’ of the political tradition of western democracies. Indeed, Green,363 contrary to the popular view, went so far as to argue that while it might be unlikely, there should be no reason why a State may not recognize a fugitive from a politically sympathetic State as a political offender.364 The EAW and the United Kingdom Extradition Act 2003 suggest that Green is wrong on this point. The level of cohesiveness between States in western industrialised society has been enhanced by the events of September 11th in the United States and the bombings in Madrid and London. However, even in 2003, member States of the Council of Europe were prepared to allow States parties to preserve reservations to the 1977 ECST permitting the serious and violent offences to be found in Articles 1 and 2 to be deemed political subject only to renewal thereof on a three yearly basis. If even regional abolition is practically impossible, then all that will probably happen in the near future is that the process of excluding certain offences from the exemption will continue.

6.2 Exclusion of Offences Exclusion of offences is by far the most popular approach to dealing with the present day difﬁculties of applying the political offence exemption.

361

362 363 364

However, note that even after the Protocol comes into force, Article 5 ECST will allow the requested State to refuse extradition if it: has substantial grounds for believing that the request for extradition for an offence mentioned in Article 1 or 2 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons. Supra n6, p. 203 and n1066. Hijacking, Extradition and Asylum, 22 CHITTY’S LJ 135 at p. 136. Viz. Watin, supra n86. See also the refusal by Belgian courts to extradite Basques to Spain and the Spanish reaction thereto – The Guardian p. 11, 7 FEB 1996; p. 14, 10 FEB 1996; p. 18, 14 FEB 1996; p. 12, 22 FEB 1996; p. 15, 6 MAR 1996.

260

Chapter 5 Practically every proposed or enacted legislation in the world which purports to prevent and control individual ‘terrorism’ is in the nature of repressive penal and administrative measures.365

However, the approach is almost as old as the political offence exemption, with the attentat clause being ﬁrst incorporated into Belgian extradition law in 1856;366 indeed, it is still found in some extradition treaties today.367 With time, though, a wide variety of methods for implementing this response have developed. On the other hand, there may be times when either the executive or the courts would wish to protect a perpetrator of such an offence through use of the political offence exemption. A residuary discretion is still desired, probably because of the alreadymentioned historico-legal ‘folklaw’ that surrounds the exemption. A blanket exclusion of crimes involving homicide and grievous assault is one solution to the problem of condoning terrorism, but at the same time it may include such an over-inclusive deﬁnition that it creates a near-automatic duty to extradite anyone who has used violent means to either advance his cause or resist violent State action.368

As will be seen, all the international arrangements or statutes, however, have drawn back from excluding the exemption without leaving an alternative means of protecting the fugitive. The usual method is to include the ubiquitous non-persecution clause. Different amending provisions in these instruments have used negative and positive deﬁnitions of the political offence.369 The negative approach lists those offences which are to be deemed non-political, whereas the positive approach seeks to guide the courts as to those factors which distinguish violent common crimes from political offences. Sofaer provides the theory behind the negative approach. While Castioni, narrowly construed, may have made sense when it was decided, it makes no sense today to deny extradition to a nation such as Switzerland – with a democratic system of politics and a fair system of justice – of a man who wilfully attempts to impose his will on the people through murder . . . Some offences must fall outside the scope of the exception, even though they are politically motivated.370

Some instruments, such as the ECST, use both approaches in combination, so any attempt to separate out discussion of the two approaches would be doomed to fail365 366 367

368

369 370

Bassiouni, Inquiry, supra n237, at p. xxvii. See SHEARER, supra n38, at p. 185. See Art.4.1, 1952 Arab League Agreement, 159 B.F.S.P.606; Clause 12.2(a)(i) London Scheme for Extradition within the Commonwealth 2002. Currin, supra n136, at p. 451. NB. Clause 12.2(a)(iii) London Scheme for Extradition within the Commonwealth 2002 does permit States to exclude murder from the political offence exemption. Viz. Art. 4.4 1952 Arab League Agreement, supra n367. See also Currin, supra n136. HEARING, supra n270, at pp. 257–58.

The Political Offence Exemption

261

ure. However, the difference needs to be borne in mind when considering the theory of ‘deﬁning’ the political offence exemption. a. European Convention on the Suppression of Terrorism371 The ECST, which was concluded in 1977, sought to render non-political a speciﬁed list of offences of the type used by violent terrorists.372 Thus, fugitives who had committed a listed offence were supposed to be excluded from the protection offered by the political offence exemption. Although it has been described as “essentially an extradition agreement”,373 it lacked a clause permitting it to be used as a surrogate extradition treaty where a formal one does not exist. Until 1990 the United Kingdom was in the peculiar position of having designated Turkey as a convention country while it had no extradition relations with Turkey. The limit of the ECST in those circumstances was the obligation found in Articles 6 and 7 to prosecute those fugitives it does not, or can not, extradite.374 The 2003 Amending protocol provides in Article 3 that a new subparagraph be added to Article 4 permitting the ECST to be used as a surrogate extradition treaty where the requested State requires an extradition agreement and it does not have an existing agreement with the requesting State. The ECST does not guarantee extradition, for the normal requirements have to be met,375 such as the principle of speciality. Moreover, under Article 5 a State can refuse extradition if it believes the fugitive has been requested, for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that the person’s position may be prejudiced for any of these reasons.

In addition, the 2003 Protocol extends Article 5 so that there is no obligation on the requested State if the transnational fugitive offender risks being exposed to torture or if s/he risks being exposed to the death penalty or life imprisonment without parole unless, in the case of the death penalty or life imprisonment, appropriate assurances are received from the requesting State. What is remarkable is that such a provision as this is still recognised as being necessary among States where the 371

372

373 374

375

ETS 90 (1977). See Müller-Rappard, The European Response to International Terrorism, at pp. 385 et seq., in BASSIOUNI, LEGAL RESPONSES, supra n237, and Gilbert, supra n101, at pp. 14–20. See also, the Amending Protocol, ETS190 (2003). Arts.1 and 2. NB The COMMONWEALTH REVIEW, 1982, and views of DR STEIN at p. 52. The 2003 Amending Protocol extended the list in Articles 1 and 2. Carbonneau, supra n41, at p. 40. And whether Articles 6 and 7 could be used when no request for extradition could be made was open to question. On such issues in general, see Schabas and Olivier, ‘Terrorism and Criminal Procedure’ at pp. 270 et seq., in DOUCET, TERRORISM, VICTIMS AND INTERNATIONAL CRIMINAL RESPONSIBILITY (2005).

262

Chapter 5

European Convention on Human Rights is supposed to apply.376 If Article 5 is applied, though, then the requested State must prosecute the fugitive itself.377 Given that Article 5 was thought to be necessary in the ﬁrst place, it is regrettable that it is only a reservation on the duty to extradite and does not provide the individual with a right to appeal if he feels that he would be persecuted on return to the requesting State.378 Since the ECST is a product of the Council of Europe, it would have been possible to provide a right of appeal through individual petition to the organs of the ECHR. If it was thought necessary to include Article 5, then the drafters should have taken its underlying principles to their logical conclusion, instead of the indirect challenge through the ECHR itself.379 As a model for an international worldwide convention against terrorism, the ECST would appear suitable at ﬁrst sight. It abolishes the political offence exemption for various offences and forces parties either to extradite or prosecute. However, it still requires a State to ﬁnd that the offence is within the list covered by the Convention and it took a long time for even a majority of member States of the Council of Europe to ratify it, although the position has improved. There are still doubts, though, about extraditing all terrorists, even within Europe.380 The attempt at co-operation against terrorism by the ECST is already being branded as a failure.381 It does not seem to have been possible to convince all States that the guarantees of the Convention on Human Rights are so secure that suspected terrorists offenders might not be put in unjustiﬁable jeopardy if they were extradited.382

Indeed, this lack of faith was perceived during the drafting of the ECST.383 This perception is reinforced by Article 13 of the 1977 Convention. (1) Any State may, at the time of signature or when depositing its instrument of ratiﬁcation, acceptance or approval, declare that it reserves the right to refuse extradition in respect of any offence mentioned in Article 1 which it considers to be a political offence, an offence connected with a political offence or an offence inspired by political motives, provided that it undertakes to take into due consideration, when evaluating the character of the offence, any particularly serious aspects of the offence, including: 376

377 378 379 380 381

382

383

Cf. Ireland v United Kingdom Series A, vol. 25, and Aydin v Turkey, (57/1996/676/866), European Court of Human Rights, 25 September 1997, paras. 83–86. See Chahal v United Kingdom, (70/1995/576/662), 15 November 1996. Articles 6 and 7. See WIJNGAERT, supra n6, at p. 200. Cf. Altun v Germany, App. 10308/83, (1983), 5 EHRR 611; (1985), 7 EHRR 154. See Warbrick, supra n210, at p. 119. See Kelly, Problems of Establishing a European Judicial Area, AS/POL/COLL/TERR(32)8, p. 3. Cited in Warbrick, supra n210, at n203. See Nagel, A Socio-Legal View on the Suppression of Terrorism, AS/POL/COLL/TERR(32)19. Cited in Warbrick, supra n210, at n204. And see Gilbert, supra n101. Some of the text in the remainder of this section is taken from the author’s own article, supra n101.

The Political Offence Exemption

263

(a) that it created a collective danger to the life, physical integrity or liberty of persons; or (b) that it affected persons foreign to the motives behind it; or (c) that cruel or vicious means have been used in the commission of the offence.’

What was instituted in Article 1 could effectively be nulliﬁed by Article 13. The Irish Extradition (European Convention on the Suppression of Terrorism) Act 1987 used to incorporate elements of Article 13, but in a way that left the court with a discretion as to how to apply those principles. Section 4 of the 1987 Act would exclude from the political offence exemption a serious offence threatening the life, physical integrity or liberty of persons, or threatening property creating a collective danger for persons,384 only after . . . [taking] into due consideration any particularly serious aspects of the offence, including – [the matters mentioned in paragraphs (a), (b) and (c) of Art. 13(1)]

How these factors were to be applied was not made clear in the Irish legislation; it seems to be a difﬁcult balancing exercise to try and assess the ‘merit’ of killing a member of the army or police in Northern Ireland, for instance, against the fact that cruel or vicious means were used.385 In Magee v O’Dea,386 Flood J found that the crimes for which the transnational fugitive offender was requested were within s3 Extradition (ECST) Act 1987, but that since they had not presented a “collective danger to the life, physical integrity or liberty of persons”, they could still be deemed political in character having regard to the discretion preserved to the 384

385

386

Section 4(2)(a). Section 1(1) deﬁnes serious offences as those carrying a penalty of ﬁve years imprisonment under Irish law. McCarthy J had tried, prior to the enactment in 1987 of this concept of proximity, to provide some common law principles by which to assess just how proximate the fugitive’s offence must be in order to distinguish common crimes from political offences: see Shannon v Fanning, supra n169, at 597–98 (emphasis added). In my opinion, without seeking to delimit the circumstances there are to be considered, the objective determination of whether or not an offence charged is a political offence or an offence connected with a political offence within the meaning of the Act should primarily rest upon an assessment of three factors: 1. The true motivation of the individual or individuals committing the offence. I do not share the view that, in order to assess motive, the individual charged must admit his involvement in the crime. 2. The true nature of the offence itself. 3. The identity of the victim or victims. In assessing all or any of these factors, the proximity of each to the alleged political aim is critically important and is capable of objective assessment. See also, O’Higgins CJ in McGlinchey v Wren, supra n162, who held that it should not be deduced that if the victim were someone other than a civilian who was killed or injured as a result of violent criminal conduct chosen in pursuance of a political aim, . . ., the offence would necessarily be classiﬁed as a political offence or an offence connected with a political offence. Supra n185.

264

Chapter 5

judiciary under s4. Partly as a result of this decision, the Irish Extradition (Amendment) Act 1994 was passed. The general discretion under s4 of the 1987 Act was repealed and the list of offences that could not be political in character was extended.387 Nevertheless, if Article 13 was to have a part to play in the implementation of the ECST, then the original Irish model was the least destructive to the Convention’s aims. The Italian government, on the other hand, declared that it would not extradite fugitive offenders for a ‘political offence, an offence connected with a political offence or an offence inspired by political motives’, which seems to defeat the purpose of Article 1:388 Article 1 listed offences which were to be deemed non-political, but Italy’s reservation effectively sabotaged the fundamental purpose of the ECST. By including Article 13, it was as if the drafters had wanted to preserve pre-existing discretion while simultaneously allowing the governments ratifying the ECST to say that they were ﬁghting terrorism. Subsequently, the member States of the European Community drafted the Agreement Concerning the Application of the European Convention on the Suppression of Terrorism among the Member States of the European Communities, the so-called Dublin Convention.389 In Article 3, the text of the Dublin Convention provided that a State party to the ECST which had made a reservation under Article 13 thereof could only rely on it within prescribed limits and had to submit any case where surrender was refused to its own authorities for prosecution – aut dedere, aut judicare. In 1996, the European Union Convention Relating to Extradition between the Member States,390 tightened up this position, providing that the political offence exemption should be abolished in relation to extradition between member States391 and vitiating all reservations under Article 13 of the ECST. The EAW in 2002 abolished the political offence exemption within the European Union. The Council of Europe ﬁnally revised Article 13 in the 2003 Amending Protocol, as discussed above; what will become Article 16, requires the reservation to be applied on a case by case basis with reasons being given by the court as to why the reservation should apply and the reservation will have to be renewed every three years. 387 388

389 390 391

See s2 Extradition (Amendment) Act 1994. See Green, supra n245, at p. 582. See also, Trb.1985 No.66 pp. 3–5: Sweden and Cyprus entered reservations under Article 13 allowing them to refuse extradition if the offence was considered to be political. Switzerland and Norway made reservations that they would refuse extradition if the offence was deemed political, connected with a political offence or inspired by political motives, taking into account, however, any particularly serious aspects of the offence, including (a) that it created a collective danger to the life, physical integrity or liberty of persons, (b) that it affected persons foreign to the motives behind it, or (c) that cruel or vicious means had been used in the commission of the offence. The Netherlands and Iceland reserved the right to refuse extradition simply if the offence was deemed political, connected with a political offence or inspired by political motives. (I am grateful to the Editorial Board of the Netherlands Yearbook of International Law for providing me with this information produced by the Dutch government). 19 INT.LEG.MAT.325 (1980). Supra n357. See also, the Irish Extradition (European Union Conventions) Act, (No.49) 2001. While allowing parties to limit this to offences found in Articles 1 and 2 of the ECST.

The Political Offence Exemption

265

Regardless, an aspect of the ECST, and of other multilateral anti-terrorist conventions, that is frequently overlooked and which counterbalances some of the earlier criticisms, is that trial is always possible in the requested State. It has to be remembered that it is the ‘European Convention on the Suppression of Terrorism’, not the ‘European Convention to Abolish the Political Offence Exemption’: simply because a State, relying on an Article 13/16 reservation, still refuses extradition for an Article 1 crime on the ground that it is political in character does not vitiate the ECST’s effectiveness in toto – if extradition is refused, for whatever reason, then the requested State is obliged to present the fugitive for prosecution before its own courts under Articles 6 and 7. It is possible that the requested States’s prosecuting authorities will ﬁnd that there is no case to answer, but non-extradition does not mean that the fugitive obtains effective immunity through sanctuary in the requested State. On the other hand however, Articles 6 and 7 are patently an inferior route to prosecution – aut dedere, aut judicare is not a balancing of equally valid and alternative means of prosecution,392 extradition is the preferred method of disposal,393 partly because the requesting State will have the most interest in prosecution394 (although too great an interest, possibly, in the eyes of the requested State). Nevertheless, in assessing the effectiveness of the ECST and other multilateral anti-terrorist treaties, the possibility of trial in the requested State should not be ignored and, indeed, such a provision may have been incorporated precisely to provide States with the discretion to refuse extradition – the idea of giving priority to trial in the requested State is considered below. There is no doubt that the political offence exemption has entered the ‘historicolegal folklaw’ of western European democracies; thus, any restriction on its scope would not be easily achieved and would never be absolute. On the one hand, the ECST, having regard in particular to Articles 5 and 13, and despite Articles 6 and 7, seems to be no more than a forceful example of political posturing. On the other hand, it may be that the State parties always saw it as a mere gesture, on the basis that any treaty would be but part, and even an incidental part, of a system of meeting the threat of terrorism. States perceived that anti-terrorist treaties could never defeat terrorism – that would require political measures and, as such, States needed to reserve to themselves sufﬁcient discretion. To that end, a mechanism allowing State parties to apply or disregard the political offence exemption as and when they so wished and to prosecute the fugitive when extradition was refused would be as effective in practice as abolishing the exemption outright. Thus, it should have been anticipated that States would not set out to bind themselves absolutely by any treaty. Even the 2003 Amending Protocol, put in place after the events of 11 September

392 393

394

Bassiouni, supra n239. Both Articles 6 and 7 talk of referring a case to the requested State’s prosecuting authorities after an extradition request has been received and rejected. And it is administratively more convenient to prosecute where the offence occurred, especially for common law States bound by the hearsay rule in evidence – see Chapter Three, above.

266

Chapter 5

2001 does not reject reservations, it simply requires that they be applied selectively. States, therefore, had two goals in tension with one another when drafting the ECST: ﬁghting terrorism whilst preserving State discretion. The ECST is, thus, clumsy and inelegant, even incoherent, from an academic legal viewpoint, but justiﬁable and understandable if seen within the context of a socio-legal viewpoint. Indeed, any analysis of transnational terrorism and fugitive offenders based simply on treaty provisions alone is prone to this limited vision of State aims and objectives. The provisions have to be seen in the context of their application and of other measures designed to achieve similar ends. b. The Anglo-Indian Extradition Treaty Modelled on the ECST 1977, the Anglo-Indian Treaty is notable for one particular clause. The principal measure is Article 5. As with most anti-terrorism provisions, it seeks to exclude certain listed crimes from the ambit of the political offence exemption. The list includes the U.N. conventions mentioned under Article 6395 as well as a broader range of other crimes that a terrorist might be supposed likely to commit. This anti-terrorist focus is express in Article 5(2)(o): any other offence related to terrorism which at the time of the request is, under the law of the Requested Party, not to be regarded as an offence of a political character.

The use of the undeﬁned phrase ‘offence related to terrorism’ is unwelcome, but the limit that it must already be outside the ambit of the political offence exemption under domestic law makes it tolerable. It would be worrying if a catch-all term like ‘terrorism’ were to be used generally to restrict the scope of one of the best established freedoms in international extradition law. Contrary to Lubet’s view,396 extradition law should not be limited to a narrow approach designed to produce a single result, namely “law enforcement”.397 There is too much latitude granted to judges when imprecise terms are used in legal agreements.398 Furthermore, it is unlikely

395

396 397 398

Hague Convention of 1970 on Hijacking, 10 INT.LEG.MAT.133 (1971); the Montreal Convention of 1971 on Unlawful Acts Against the Safety of Aircraft, 10 INT.LEG.MAT.1151 (1971); the New York Convention on Offences Against Internationally Protected Persons, 13 INT.LEG.MAT.42 (1974); and, the 1980 Hostages Convention, 18 INT.LEG.MAT.1456 (1979). Supra n315, at pp. 984 and 963–65 (1988). Paust, supra n315. See, Green, New Trends in International Criminal Law, 11 ISRAELI YB.H.R.9 at p. 24 (1981); see also, the Permanent Court of International Justice’s opinion in the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, (1935) PCIJ Ser.A/B no. 65 at pp. 52–53. Instead of applying a penal law equally clear to both the judge and the party accused . . ., there is the possibility under the new decrees that a man may ﬁnd himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely on the appreciation of the situation by the . . . judge. Accordingly, a system in

The Political Offence Exemption

267

that any offence expressly excluded in Article 5 would have been deemed political in character anyway, given the remoteness test imposed in Schtraks v Government of Israel399 and Cheng v Governor of Pentonville Prison.400 The scope of Article 5 is further limited by Article 9(1)(a) and (b), which allows a court to refuse extradition where it believes that the fugitive would be discriminated in criminal proceedings in the requesting state on the basis of his “race, religion, nationality or political opinions”. Moreover, the Anglo-Indian treaty has to be read in the light of the decision in Chahal v United Kingdom,401 where the European Court of Human Rights held that the United Kingdom would be in breach of its obligations under Article 3 of the ECHR if it were to deport a Sikh to India with respect to whom there were substantial grounds for believing that he would face a real risk of being subjected to torture or inhuman and degrading treatment at the hands of the Indian authorities. In summary, the growing trend is for extradition agreements to exclude expressly violent offences from the scope of the political offence exemption, but the use of vague phrases such as ‘terrorism’ is unacceptable. c. Inter-American Convention Against Terrorism402 Like the ECST, this is a regional convention that deﬁnes terrorism in terms of United Nations treaties dealing with certain crimes (Article 2).403 However, in many ways it is much more comprehensive in its attempt to prevent terrorism. There is much emphasis on matters related to the ﬁnancing of terrorism at the domestic level, including money laundering and the seizure of funds and assets. Mutual legal assistance is encouraged in Articles 7 to 10. As such, it imposes on States parties the obligation to establish a “comprehensive domestic regulatory and supervisory regime for banks, other ﬁnancial institutions, and other entities deemed particularly susceptible to being used for the ﬁnancing of terrorist activities” (Article 4.1(a)) and a “ﬁnancial intelligence unit to serve as a national centre for the collection,

399 400 401 402

403

which the criminal character of an act and the penalty attached to it will be known to the judge alone replaces a system in which this knowledge was equally open to both the judge and the accused. Supra n54. Supra n12, esp. at 945. (70/1995/576/662), 15 November 1996. AG/RES. 1840 (XXXII-O/02), June 3, 2002, OAS Treaty A-66, 42 I.L.M. 19 (2003). See also, the earlier Model American Convention on the Prevention and Punishment of Certain Serious Forms of Violence Jeopardizing Fundamental Rights and Freedoms of the Standing Committee on World Order Under Law of the American Bar Association – an article of the same name has been written by Bert B. Lockwood Jr, supra n266. After that article was published, the ABA produced an updated version of the Model Convention. It can be found in Lillich, Model American Convention, 77 AM.J INT’L L 662 (1983). The government of Ecuador entered a Declaration at the time of signature deploring “that the member states have not been able to reach a consensus on the deﬁnition of terrorism and its classiﬁcation as an international crime against humanity.”

268

Chapter 5

analysis, and dissemination of pertinent money laundering and terrorist ﬁnancing information” (Article 4.1(c)). Law enforcement agencies are to enhance channels of communication and facilitate the secure and rapid exchange of information (Article 8). Article 11, however, is more akin to the ECST, in that its emphasis is on transnational fugitive offenders rather than domestic procedures to combat international crime: 11. Inapplicability of political offense exception For the purposes of extradition or mutual legal assistance, none of the offenses established in the international instruments listed in Article 2 shall be regarded as a political offense or an offense connected with a political offense or an offense inspired by political motives. Accordingly, a request for extradition or mutual legal assistance may not be refused on the sole ground that it concerns a political offense or an offense connected with a political offense or an offense inspired by political motives.404

In addition though, the Inter-American Convention Asgainst Terrorism provides States parties with a method of refusing extradition based on the treatment the transnational fugitive offender might receive upon surrender. Article 15 provides that everything done under the Convention Against terrorism has to respect rule of law, human rights and fundamental freedoms. Article 14 is in line with the standard non-persecution clause.405 404

405

See also, Articles 12 and 13: Article 12 Denial of refugee status Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention. Article 13 Denial of asylum Each state party shall take appropriate measures, consistent with the relevant provisions of national and international law, for the purpose of ensuring that asylum is not granted to any person in respect of whom there are reasonable grounds to believe that he or she has committed an offense established in the international instruments listed in Article 2 of this Convention. Mexico and Chile have entered declarations that reserve to themselves the decision as to whether to grant asylum. Without detriment to Mexico’s determination to combat all terrorist acts, methods, and practices, it is my Government’s interpretation that the right to asylum is part of international human rights law as referred to in paragraph 2 of Article 15 of this Convention, since both Article 14 of the Universal Declaration of Human Rights and Article XXVII of the American Declaration of the Rights and Duties of Man embody the right of every person to seek and receive asylum in foreign territory. Without prejudice to the reiteration of its condemnation of all terrorist acts, methods, and practices, irrespective of motive, manner, or manifestation, and to its commitment to continuing to take all pertinent measures that may be necessary to combat such acts, the Government of Chile hereby declares that Article 13 of the Convention does not impair the right of the State granting asylum to characterize, pursuant to international law, the nature of the act giving rise to the request for asylum. All States parties are bound by the American Declaration on the Rights and Duties of Man 1948,

The Political Offence Exemption

269

Article 14 Non-discrimination None of the provisions of this Convention shall be interpreted as imposing an obligation to provide mutual legal assistance if the requested state party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, or political opinion, or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

The Inter-American Convention, like the ECST, is a compromise between combating terrorism and nevertheless upholding long established guarantees for protecting the individual. d. United States Statutes406 During the 1980s, a series of Bills407 were introduced before both Houses of Congress in an attempt to tighten up the United States’ domestic interpretation of the political offence exemption. To that extent, the bills are of limited interest, but the approaches adopted do help to elucidate the difﬁculties in excluding terrorists from the political offence exemption. The earliest Bill, S.1772 (1980), would have made the determination of the political offence question an executive, rather than a judicial one. The merits of this approach are discussed below in the conclusion, but the U.S. Congress rejected it. Since the forum for determination could not be changed, the question for determination had to be. The later Bills, again, generally adopted the approach of excluding offences from the scope of the exemption. Bill HR 3347, on the other hand, as well as excluding offences, also attempted to provide positive guidelines as to the factors to be considered when determining whether any offence ought to be deemed political. (A) the status (whether civilian, governmental or military) of any victims of the alleged offence; (B) the relationship of the alleged offender to a political organization;

406

407

but unlike the Council of Europe, it is not obligatory for all member States of the OAS to be parties to the American Convention on Human Rights. There was also the Anglo-US Supplementary Extradition Treaty of 1986, Cm.294, UKTS 6 (1988) and, with comments, in Appendix 1 to the U.S. Senate EXEC.REPT 99–17, accompanying TR.DOC.99–8, now replaced by the 2003 Treaty. See S.1772 c32 (1980); H.R.5227 (1981); S.1940 (1982); H.R.6046 (1982); S.220 (1983); H.R.2643 (1983); H.R.3447 (1983). Since under the current law (18 USC §3184) the political offence exemption is dealt with in the bilateral treaties, the U.S. has made the test an executive matter in some recent treaties: U.S.-Mexico, TIAS 9656; U.S.-Netherlands, TIAS 10733. For a critical assessment of these amendments, proposed or realised, see: Sternberg & Skelding, State Department Determinations of Political Offences: Death Knell for the Political Offence Exception in Extradition Law, 15 CASE W RES.J INT’L L 137 (1983); Hannay, Legislative Reform of U.S. Extradition Statutes: Plugging the Terrorist Loophole, 13 DENV.J INT’L L & POL’Y 53 (1983); Bassiouni, Extradition Reform Legislation in the United States: 1981–83, 17 AKRON L REV.495 esp. at pp. 546–553, (1984); Currin, Extradition Reform and the Statutory Deﬁnition of Political Offences, 24 VA.J INT’L L 419 (1984).

270

Chapter 5 (C) the existence of a civil uprising, rebellion, widespread civil unrest or insurrection within the State requesting extradition; (D) the motive of the alleged offender for the conduct alleged to constitute the offence; (E) the nexus of such alleged conduct to the goals of a political organization; (F) the seriousness of the offence.

The appropriateness of some of these criteria might be questioned, such as the status of the victim, but the positive approach was to be welcomed since it would have provided the courts with discretion#, without leaving the way open to abuse. Nevertheless, there were criticisms of the positive approach of HR 3347. As Murphy pointed out, [although H.R.3347] did not, strictly speaking, attempt to deﬁne a political offence, it did set forth a variety of criteria that courts would have been required to consider in determining whether an alleged criminal act was a political offence. The bill simply listed these criteria however, it did not specify precisely how the courts are to apply them in their deliberations, nor what weight is to be given to each of the criteria.408

The analysis is accurate, yet Murphy’s conclusion that “the attempt should be abandoned” ought not to be accepted. Like all the other Bills, however, HR 3347 failed to make it onto the statute book. e. Speciﬁc United Nations Responses On the other hand, the entire approach considered so far may be wrong, for the regional and bilateral treaties and U.S. Bills already discussed, started by deciding that the political offence exemption should be limited and then listed the offences that should no longer be protected. The reaction to protect the full ambit of discretion under the exemption should have been foreseen. The proper approach may be to suggest that, under the auspices of the United Nations, certain offences have already been designated international crimes by conventions that have been ratiﬁed by a goodly number of the States in the world. For some time now, there has been a piecemeal approach409 of ‘internationalising’ various serious offences through multilateral conventions sponsored by the United Nations. A possible restriction on the political offence exemption would be to exclude these crimes from the ambit of its protection. For these offences, it would appear there should be no protection from the exemption: States have agreed, in theory, that these crimes must be punished no matter where the fugitive turns up. The right response might be, therefore, to forget regional or speciﬁc attempts to exclude offences from the political offence 408 409

Supra n220, at p. 67. NB. India submitted a draft convention on terrorism to the United Nations Sixth Committee in 2000, UN Doc.A/C.6/55/1, 28 August 2000. See also, Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN Doc.A/57/37, 2002.

The Political Offence Exemption

271

exemption, but rather to obtain agreement that the political offence exemption is redundant with regard to these convention offences. Since many States have taken steps to combat these offences regardless of where the crime took place, it may be possible to argue that they are crimes contra jure gentium and, as such, it should be expressly stated in each convention that the political offence exemption can have no place with respect to such crimes.410 It is not that the exemption is being redeﬁned, it is merely recognising that States have already decided that these offences must be punished in every case – the exemption sometimes prevents surrender of a transnational fugitive offender and is, thus, contrary to this internationally accepted objective. In the United States treaties with Jamaica and Costa Rica,411 there are provisions excluding from the political offence exemption those offences which are proscribed by a convention which imposes an obligation to extradite or prosecute. The range of international crimes promulgated through conventions alone since the 1960s is wide,412 and if other sources of international law, such as custom, the writings of eminent jurists and pending conventions, are included, then the list is extremely comprehensive, going beyond merely terrorist related crimes.413 Conﬁning this survey to those international crimes intended to deal with terrorism, the offences are nearly all proscribed by an existing convention.414 The spate of major hijackings in the 1960s and 1970s produced the Tokyo Convention415 and, more importantly, the Hague and Montreal Conventions,416 culminating in the Bonn

410

411 412 413 414

415

416

NB See the reasoning in Lockwood at pp. 582 et seq., supra n266, and in Lillich at p. 663, supra n402. Supra nn114 and 113, respectively. See Green, supra n245, at pp. 573–76. Bassiouni, supra n239, at pp. 28–29 (1983). NB. The International Convention for the Suppression of the Financing of Terrorism, Annex to UNGA Res.54/109, 25 February 2000 does add to its list of proscribed offences, a more general description of terrorist crime. Article 2 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: ... (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conﬂict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act. The Tokyo Convention of 1963 on Offences and Certain Other Acts Committed on Board Aircraft, UKTS 126 (1969); Cmnd 4230. See Convention for the Suppression of the Unlawful Seizure of Aircraft, done at The Hague, 16 December 1970, supra n107, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal, 23 September 1971, 10 INT.LEG.MAT.1151 (1971). See also McMahon, Air Hijacking: Extradition as a Deterrent, 58 GEORGETOWN LJ 1135 (1970); Green, supra n35; Shubber, Aircraft Hijacking under the Hague Convention of 1970 – A New Regime, 22 INT’L & COMP. LQ 687 (1973); Shubber, Is Hijacking of Aircraft

272

Chapter 5

Declaration of 1978.417 A change of tactics by the terrorists gave rise to the U.N. Conventions on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents418 and on The Taking of Hostages.419 The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was drawn up in response to the Achille Lauro Affair.420 In the late 1990s, two further anti-terrorist conventions were promulgated: the International Convention for the Suppression of Terrorist Bombings 1998421 and the International Convention for the Suppression of the Financing of Terrorism.422 It is interesting to note that in the wake of the events of 11 September 2001, there was no rush to draft a new convention, but the Security Council and the General Assembly both called on governments to ratify the relevant existing United Nations conventions.423 Although not speciﬁcally limited to individual terrorism, the United

417

418

419 420

421 422

423

Piracy in International Law?, 43 BRIT.YB.INT’L L 204 (1968); ALEXANDER & SOCHOR, AERIAL PIRACY AND AVIATION SECURITY (1990). 78 Dep’t of State Bull.No.2018 (Sept 1978) at p. 4; 17 INT.LEG.MAT.1285 (1978). Statement of the Seven, Canada, France, Federal Republic of Germany, Italy, Japan, United Kingdom and United States. The Bonn Declaration was reafﬁrmed at the Venezia Summit of the G7/G8, June 1987 – . See Schwenk, The Bonn Declaration on Hijacking, 4 ANN.AIR & SP.L 307 (1979); Busuttil, The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking, 31 INT’L & COMP. LQ 474 (1982); Chamberlain, Collective Suspension of Air Services with States which Harbour Hijackers, 32 INT’L & COMP. LQ 616 (1983). The Bonn Declaration was implemented against the Karmal government of Afghanistan through the Montebello Declaration, 81 Dep’t of State Bull.No.2053 (Aug 1981) at p. 16; 20 INT.LEG.MAT.956 (1981). See Busuttil at p. 474 n5. The threat of its imposition forced South Africa to prosecute mercenaries who had attempted to overthrow the Seychelles government – Busuttil. Pressure from the Bonn Seven and the ICAO forced Sri Lanka to, ﬁrst of all, pass antihijacking legislation and, subsequently, prosecute one of its nationals who extorted money through a hijack – Ekanayake v Attorney-General, 87 INT’L L REP.296. The New York Convention, 13 INT.LEG.MAT.42 (1974): see R v Donyadideh 101 INT’L L REP.259. See also Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Signiﬁcance, O.A.S. Doc.AC/88.1, 10 INT.LEG.MAT.255 (1971). The Hostages Convention, 18 INT.LEG.MAT.1456 (1979). The Rome Convention, I.M.O.Doc SUA/CON/15, 10 March 1988, 27 INT.LEG.MAT.668 (1988). RONZITTI, MARITIME TERRORISM AND INTERNATIONAL LAW, esp. Treves on the Rome Convention at pp. 69 et seq. See also, CASSESE, TERRORISM, POLITICS AND LAW (1989). An example of a pre-emptive convention is found in the Convention on the Physical Protection of Nuclear Materials, Cmnd 8112 – see Bettauer, 74 AM.J INT’L L 205 (1980). 37 INT.LEG.MAT.249 (1998). Annex to UNGA Res.54/109, 25 February 2000. NB. Colombia has indicated it may seek the extradition of members of a Danish NGO that it claims is funding the FARC – The Guardian p. 13, 26 OCT 2004. See also, the Council of Europe Convention on the Laundering, Search, Seizure and Conﬁscation of the Proceeds from Crime and on the Financing of Terrorism (ETS 198, 16 May 2005). See UNSC Resolutions 1368, 1373 and 1377 (2001). UNGA Resolutions 56/1, 56/88 and 56/160. Recalling the Declaration on Measures to Eliminate International Terrorism, contained in the annex to resolution 49/60 of 9 December 1994, wherein the General Assembly encouraged States to review urgently the scope of the existing international legal provisions on the prevention, repression and elimination of terrorism in all its forms and manifestations, with the aim of

The Political Offence Exemption

273

Nations and European Torture Conventions424 also share features with the above measures and can be viewed as part of the same scheme for providing mutual assistance in the prosecution of international crimes. The specialised treaties seek to combat these particular crimes by extending the criminal jurisdiction of the signatory States to encompass all offenders (regardless of their nationality, the nationality of their victims and the location of the offence), by making extradition more easily available and by requiring prosecution in the requested State whenever extradition is not granted.425 However, the earlier ones do not declare the proscribed offence to be non-political; only the Bombings and Financing Conventions do that. It is open to the requested State to ﬁnd that a hijacking, for example, is a political offence. On the other hand, Article 11 of the Bombings Convention provides as follows: None of the offences set forth . . . shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.426

424

425

ensuring that there was a comprehensive legal framework covering all aspects of the matter, (UNGA Res.56/88, 24 January 2002) See also, The Guardian p. 2, 19 SEP 2001. UNSC Resolution 1535 (2004) on International Terrorism sets out to assist States to implement UNSC Resolution 1373 (2001). U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 EHRR 325 (1985). See also RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (1986) and Clark, Human Rights and the U.N. Committee on Crime Prevention and Control, 506 ANN.AMER.ACAD.POL. & SOC.SCI.68 (1989). European Convention for the Prevention of Torture, 27 INT.LEG.MAT.1152 (1988), and see 28 INT.LEG.MAT.1341 (1989); CSCE/CHD Copenhagen Document, June 1990, para.16, 11 HRLJ 232 (1990), and Buergenthal, A new public order for Europe, 11 HRLJ 217 (1990). For example, looking at the Hague, Montreal, New York, Hostages, Financing and Bombings Conventions, the following matters are dealt with by the listed articles. Jurisdiction Hague Montreal New York Hostages Financing Bombings

4 5 3 5 7.4 6.4 Surrogate Extradition Treaty

426

Extraditable Offence 8.1 8.1 8.1 10.1 and 9 11.1 9.1 Extradite or Prosecute

Hague 8.2 7 Montreal 8.2 7 New York 8.2 7 Hostages 10.2 8 Financing 11.2 10 Bombings 9.2 8 There is a very similar provision in Article 14 Financing Convention.

274

Chapter 5

Like all multilateral treaties, all the anti-terrorist conventions suffer from a failure on the part of States to ratify, from having no enforcement mechanism to deal with the situation where a State-party fails to meet its obligations, and from being a compromise representing a minimum level of agreement.427 The Hague Convention has achieved limited success and an initiative in 1990 by IATA to pool information about persons who threaten the safety of aircraft has made it even more effective. States have passed domestic laws implementing its provisions and hijackers have been extradited or prosecuted in the requested State. Offending States have even been forced through diplomatic pressure to assume their responsibilities to combat this threat to civil aviation.428 In some cases, though, implicit acceptance of the hijacker’s actions is provided where the requested State, having sentenced the fugitive, then goes on to treat him as a refugee when he is released.429 Even worse, certain cases have resulted in hijackers being set free.430 Nevertheless, [at] least with respect to persons involved in hijacking of United States registered aircraft,431 the data indicate rather widespread prosecution and conviction, and the imposition of severe penalties.432

However, even with regard to the Hague and Montreal Conventions, prosecution cannot be guaranteed and, where the requested State fails to fulﬁl its obligations, there is little the requesting State can do. The Lockerbie Affair 433 highlights the limits of international co-operation with respect to transnational fugitive offenders. A

427

428

429

430

431

432 433

See, in part, Cassese, supra n265, pp. 593–96. Cassese is probably wrong in interpreting the Rome Convention, supra n420, as excluding the political offence exemption; Article 11 merely adds the offences in the Maritime Convention to any list of extraditable offences. E.g. The ICAO forced Sri Lanka to prosecute one of its nationals who extorted money by hijacking and to pass anti-hijacking legislation Ekanayake, supra n417. Antonin L v F.R.G., 80 INT’L L REP.673 (1979). Ethiopian hijackers ended the hijack in Sudan on condition that they were not returned to Ethiopia – The Guardian p. 19, 27 APR 2001. E.g. The Guardian p. 4, 21 DEC 1982; East Germans ﬂeeing from the Soviet Union to Turkey violently hijacked an aeroplane. The Turks acquitted them because their motive was a desire to gain freedom. The Norwegian Supreme Court blocked the extradition of a Palestinian to Germany to face trial in connection with the hijacking of a Lufthansa airliner – The Guardian p. 10, 13 JAN 1995. In Abdul-Hussain, unreported, 17 December 1998, the English Court of Appeal acquitted hijackers who ﬂed Iraq on the basis that they had acted under duress; cf. Afghani hijackers were convicted after surrendering in London – The Guardian p. 9, 19 JAN 2002. Author’s note. The U.S. Federal Aviation Authority keep this information, whereas few other organisations bother. MURPHY, supra n220, at p. 109. See Tables 5.1 and 5.2 at pp. 110 et seq. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v United Kingdom and the USA, 1992 ICJ Rep. p. 3 at paras. 39 et seq., 31 INT.LEG.MAT.662 (1992); Beveridge, The Lockerbie Affair, 41 INT’L & COMP.LQ 907 at pp. 916–19 (1992). Cf. Alvarez, Judging the Security Council, 90 AM.J INT’L L 1 (1996); Allain, The Legacy of Lockerbie, 44 INDIAN J.INT’L L 74 (2004). A resolution under Chapter VI would not necessarily be unchallengeable.

The Political Offence Exemption

275

Pan-Am ﬂight exploded over the Scottish village of Lockerbie. Eventually, the United States and United Kingdom alleged that two Libyans had planted the bomb and asked Libya, a party to the Montreal Convention,434 to extradite them. Libya refused and offered to prosecute the two under the aut dedere, aut judicare provision of the Convention.435 The requesting States then took the issue to the Security Council. The Security Council ordered Libya to surrender the two and, on the basis of the Security Council resolution, the ICJ held at its preliminary hearing that it was not competent to intervene.436 The trial was eventually arranged, but in a less than straightforward manner. It was heard before Scottish judges according to Scottish laws, but it was located in The Netherlands.437 The other Conventions have so far yielded few convictions,438 but that may merely be a matter of time. Such a modest record of success may not on its own conclusively suggest that the proposal ought to be accepted that the political offence exemption could be abolished vis à vis these offences. Yet, taken along with the large number of signatories to each of the conventions, from all over the world and by all systems of government, it may be sufﬁcient to indicate that the international community as a whole already recognises that these types of offender should not be able to avoid prosecution no matter where they are apprehended and that, thus, the political offence exemption is effectively redundant as regards these particular offence.439 The proper response to such a ﬁnding should be that existing multilateral, U.N. sponsored conventions ought to be outside the political offence exemption, and that this exclusion should be achieved either by another multilateral convention to that effect,440 or by obtaining the agreement of the present sig434 435 436

437

438

439

440

Supra n416. Supra n425. See Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility 43 INT’L & COMP.LQ 55 (1994). The case on the merits was heard in October 1997 – Beveridge, Case Concerning Questions of Interpretation and the Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom; Libyan Arab Jamahiriya v United States), Preliminary Objections, Judgement of 27 February 1998, 48 INT’L & COMP.LQ 658 (1999); see also, The Guardian p. 13, 14 OCT 1997. See Anglo-U.S. letter to the United Nations Security Council (pp. 1–3) and the Anglo-Dutch agreement in UN Doc. S/1998/795. (pp. 11 et seq.) and UNSC Resolution 1192 (1998), 27 August 1998. See also, Aust, Lockerbie: the Other Case, 49 INT’L & COMP.LQ 278 (2000). A claim that the trial violated the ECHR was not successful – The Guardian p. 10, 13 SEP 2002. NB. One of the two accused was convicted and sentenced to 27 years in gaol – The Guardian p. 2, 25 NOV 2003. Libya eventually admitted responsibility for the Lockerbie bombing – The Guardian p. 6, 26 FEB 2004. Cf. Donyadideh, supra n418, a conviction for offences created with respect to the New York Convention, supra n418. See the Zardad case, where an Afghan warlord was prosecuted in the United Kingdom for torture and hostage taking in Afghanistan – The Guardian p. 2, 19 JUL 2005. See also, MURPHY, supra n220, at pp. 116–22. See John Norton Moore, The Need for an International Convention, at pp. 437 et seq. in BASSIOUNI, LEGAL RESPONSES, supra n237. Viz. 2002 London Scheme for Extradition Within the Commonwealth, Art. 12(1)(b). 12. (1) (a) The extradition of a person sought will be precluded by law if the competent authority is satisﬁed that the offence is of a political character;

276

Chapter 5

natories to insert exclusion clauses into each such convention – any other method might result in many States denouncing the convention. It is noteworthy that the most recent conventions on the Suppression of Terrorist Bombings and the Financing of Terrorism both expressly exclude the political offence exemption in relation to the listed offences. On the other hand though, it should be noted that Bassiouni has sounded a pessimistic note with regard to the exclusion of even these offences. These measures needlessly create new categories of crime or increase the penalties for existing ones. The temptation to legislate these problems out of existence will prove futile.441

This view is overly negative, although there is no strong evidence to refute Bassiouni’s contention and his underlying analysis may well be proven correct. In the short to medium term, however, the U.N. Convention crimes could be accepted as non-political. Apart from this limited ﬁeld of multilateral convention offences, though, exclusion of offences does not seem viable. Even here offences are not being excluded, but rather, as an international practice of universal jurisdiction with respect to certain international crimes becomes more accepted and widespread, the political offence exemption is being expressly recognised as redundant. Nevertheless, it is clear that the regional and bilateral approaches of the ECST,442 the Anglo-Indian Treaty, and the Inter-American Convention are not a fully effective or acceptable solution. Despite its faults, the positive deﬁnition formula, seen especially in HR Bill 3347, offered a more appropriate response to the difﬁculties of curtailing the excesses of the operation of the political offence exemption. It allowed for judicial discretion: it may not have been precise, but with this guidance it may have been possible to trust the judges to apply the political offence exemption. Blanket exclusion clauses are too restrictive and are not accepted or implemented: the positive approach was better, so far as it went. What may be better again, though, is to adopt the more general Swiss approach.

441 442

(b) Sub paragraph (a) shall not apply to: (i) offences established under any multilateral international convention to which the requesting and the requested countries are parties, the purpose of which is to prevent or repress a speciﬁc category of offences and which imposes on the parties an obligation either to extradite or to prosecute the person sought; Inquiry, supra n237, p. xxvii. See also, the Council of Europe Conventions on the Prevention of Terrorism (ETS 196, 16 May 2005), on Action against Trafﬁcking in Human Beings (ETS 197, 16 May 2005), and on Laundering, Search, Seizure and Conﬁscation of the Proceeds from Crime and on the Financing of Terrorism (ETS 198, 16 May 2005).

The Political Offence Exemption

277

6.3 The Swiss Approach Reprised At least one set of U.S. academics has suggested that the time of the Swiss proximity and proportionality tests, the predominance theory, has come.443 That courts in several European States have adopted the proximity and proportionality tests cannot be doubted. In Folkerts v Public Prosecutor,444 the Dutch Supreme Court ordered the extradition of a member of the Red Army Faction to the then F.R.G. The court held that the ultimate goal of the RAF being the destruction of the political, economic and military power of the F.R.G., crimes committed towards that end might be political. However, the political offence exemption would only extend to those fugitive offenders whose crimes “would yield any result directly related to the ultimate goal . . .”. The Dutch Supreme Court was also prepared to extradite two members of the IRA to the United Kingdom for explosive offences which were also too remote from the ultimate goal.445 The proximity test has also been applied by British courts in the cases of Cheng and Ferrandi.446 With respect to proportionality, France, long a safe-haven for members of the Basque group, ETA, now willingly extradites them to Spain. The turning point was the Conseil d’Etat’s decision in the case of Lujambio Galdeano, Garcia Ramirez and Martinez Beiztegui,447 which decided that even if their offences had been committed as part of the Basque people’s claim for independence, their very gravity deprived them of any political character.448 As discussed above, the Irish Supreme Court also took a similar line. Here the turning point was McGlinchey v Wren.449 In that case, O’Higgins CJ redeﬁned the parameters of the exemption to include elements of proportionality and proximity with respect to the then ultimate goal of the Provisional IRA and the INLA: that is, British withdrawal from Northern Ireland. The court made it clear that earlier Irish authorities on political offences were no longer binding. Previous cases on the political offence, have in many respects been rendered obsolete by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations or by individuals, is often the antithesis of what could be regarded as political.450

443 444 445 446 447 448 449

450

THE RECORD, supra n120, at p. 597. Supra n90, at 501. See McF, supra n91. Cheng, supra n12, and Ferrandi, supra n67. Supra n153. See also, Douai, supra n208. Supra n153, at p. 329. Supra n162. See also, Shannon v Fanning, supra n169, Quinn v Wren, supra n173, Russell v Fanning, supra n176 and Ellis v O’Dea, supra n171. Supra n162, at 159 per O’Higgins CJ.

278

Chapter 5

O’Higgins CJ also disparaged the United States approach of depending so heavily on the existence of a political uprising, for he indicated there should be no automatic assumption that a terrorist offence is political merely because there was at that time “widespread violence by organised paramilitary groups in Northern Ireland”. He concluded by remarking that violent offences done by, or at the behest of, self-ordained arbiters is the very antithesis of the ordinances of Christianity and civilisation and the basic requirements of political activity.451

In Ellis,452 Hamilton P held that the offences charged could not “be regarded as political offences or offences connected with a political offence as they contemplate and involve indiscriminate violence and can be correctly characterised as terrorism”. Dutch courts have adopted the proportionality test, too. The District Court of The Hague has held that the ultimate political goal must be in proportion to the harm inﬂicted as a result of the offences.453 Even the English courts, which for long relied solely on proximity, eventually incorporated elements of proportionality into the proximity test in the case of T:454 this did not go far enough, but it was a step in the right direction – proportionality, if the Swiss approach is to be adopted, needs to be seen to be separate and discrete, an independent ground with respect to which the political character of an offence can be determined. As was suggested above, the Swiss approach is the best of the current methods of implementing the political offence exemption. It can test any and every politically motivated offence. It requires that the offence is sufﬁciently proximate to the ultimate goal of the fugitive offender and his organisation. This remoteness test rules out most terrorist crimes, which is the aim, anyway, of most of the treaties and statutes so far considered and rejected as failures. Moreover, it preserves judicial discretion while demanding the much more stringent ﬁnal, universal hurdle that the offence be proportionate to the goal: authority already exists to suggest that homicide, no matter what crime it results from, will rarely be proportionate.455 Finally,

451 452 453 454 455

Supra n162, at 160. Supra n171. See the summaries of the judgments in 74 INT’L L REP.504. Supra n87. In re Pavan, [1927–28] Ann.Dig.347 at 349. Homicide, assassination and murder, is one of the most heinous crimes. It can only be justiﬁed where no other method exists of protecting the ﬁnal rights or humanity. See also T, supra n87. Regard should also be had to Principle 27 of the so-called Joinet Principles. PRINCIPLE 27. RESTRICTIONS ON EXTRADITION Persons who have committed serious crimes under international law may not, in order to avoid extradition, avail themselves of the favourable provisions generally relating to political offences or of the principle of non-extradition of nationals. Extradition should always be denied, however, especially by abolitionist countries, if the individual concerned risks the death penalty in the requesting country.

The Political Offence Exemption

279

the test is simple, unlike the positive guidelines of HR 3347 and it does not create more difﬁculties than it solves.456 An additional beneﬁt from adopting the Swiss test, though, would be that the political offence exemption would then coincide with part of the test for granting refugee status.457 The Convention Relating to the Status of Refugees, 1951, states that a person may be refused refugee status if 458 there are serious reasons for believing that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

In deciding whether the applicant for refugee status has committed such a crime, courts and tribunals in many countries have regard to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.459 Paragraph 152 of the Handbook provides guidelines for deciding whether an offence is non-political. In determining whether an offence is ‘non-political’ or is, on the contrary, a ‘political’ crime, regard should be given in the ﬁrst place to its nature and purpose, ie. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difﬁcult to accept if it involves acts of an atrocious nature.460

If immigration tribunals and courts can apply such standards, then surely an extradition court could use them when trying to assess whether the fugitive is a political offender. Admittedly, leaving it all to the judges may give rise to the same problems now being faced, but the attempts to exclude speciﬁc offences have all required the

456 457

458

459

460

The Administration of Justice and the Human Rights of Detainees, Question of the impunity of perpetrators of human rights violations (civil and political). Revised ﬁnal report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997. Bassiouni, Inquiry, supra n237, at p. xxvii. The English case of T, supra n87, concerned whether the applicant should be granted refugee status, not extradition. 189 UNTS 150 (1951), Art.1F(b); the 1967 Protocol, 606 UNTS 267. Refugee issues are dealt with in detail in Chapter Eight. See also, Gilbert, ‘Current issues in the application of the exclusion clauses’ in FELLER, TÜRK AND NICHOLSON, REFUGEE PROTECTION IN INTERNATIONAL LAW (2003), pp. 425 et seq. Published in 1979. See THE RECORD, supra n120, at p. 601, T, supra n87, and R v Secretary of State for Home Affairs, ex p Norman, Santis and Bugdaycay, [1986] 1 All ER 458. See T, supra n87, at 898, and THE RECORD, supra n120, at p. 602.

280

Chapter 5

inclusion of the standard non-persecution clause anyway to protect a fugitive from prejudice on the basis of race, nationality, political opinion or religion, if surrendered.461 Any judge willing to refuse extradition under the Swiss test would probably protect a fugitive under the non-persecution clause, although the two tests are not identical. Furthermore, it is likely that there will still be incorrect decisions by judges applying the Swiss test, releasing fugitives who ought to be extradited. Nevertheless, that would happen with any of the other tests, too. The only difference is that the Swiss approach places a much greater discretion in the hands of the judge, but not so much greater as to cast any doubt upon the wisdom of adopting the Swiss test. The Swiss test is general and while it does rely on the judge’s discretion, yet, compared with either the exclusion of listed offences or a series of guidelines which cannot be effectively applied with consistency in practice, the advantages of the Swiss approach are its simplicity and universal applicability. On the other hand, however, having regard to the homogeneity of late twentieth century western industrialised society, the Swiss test does have its limits. It imposes “the common and popular ideals and values of one nation State upon another”.462 It is a subjective test, in that it is value ridden with the views and judgments of the requested State. To provide sufﬁcient protection for the fugitive, therefore, the Swiss approach must be tempered with the usual protection from persecution clause: a full harmonisation with asylum is necessary. Extradition law should have regard to the act and the actor.463 Indeed, this step has already been taken by the Austrian Extradition Act.464 . . . In one case a fugitive from Hungary who committed homicide in the course of his ﬂight was granted political asylum upon his arrival in Austria. Extradition to Hungary was refused for various reasons, among them the danger from persecution. However, the alleged offender was tried in Austria because the crime did not qualify as a political offence, since the seriousness of the act outweighed the political motive of the ﬂight.465

To conclude on the exclusion of offences, whether by a negative or positive approach, and the Swiss Predominance Test, it seems that the easiest and most effective way to render the present political offence exemption ﬁt for the times is to combine the proportionality test with a requirement that the fugitive should face no danger of persecution if surrendered. This fusion was the conclusion reached at 461

462 463 464

465

Article 12 of the Bombings and Article 15 of the Finance Conventions add “ethnic origin” to the list. Bassiouni, supra n266, at p. 245. See also Quinn v Robinson, supra n120. Cf. WIJNGAERT, supra n6, at p. 203. See MURPHY, supra n220, at pp. 55–56. MURPHY’S information was taken from PALMER, THE AUSTRIAN LAW ON EXTRADITION AND MUTUAL ASSISTANCE IN CRIMINAL MATTERS (1983). MURPHY, supra n220, at p. 56.

The Political Offence Exemption

281

the end of the review of the various national approaches earlier in this chapter. If the exemption is to be retained in a substantially similar format, then the modiﬁed Swiss approach is the appropriate basis. A clause such as follows could be inserted into any extradition arrangement in future. A Fugitive shall not be surrendered (a) if it appears to the appropriate authority upon reviewing such evidence as is adduced by both sides, that the offence is of a political character, or, if returned, the fugitive will be tried or punished for an offence of a political character, unless the common element of the offence under the ordinary law predominates; or (b) if the fugitive offender prove to the satisfaction of any court before whom he is brought on review, or to the executive authority, (i) that the request has in fact been made with a view to try or punish him on account of his race, religion, nationality, ethnic origin or political opinions; or (ii) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, ethnic origin or political opinions.

*

*

*

The remaining responses considered below attempt to solve the present problems by either a particular, discrete amendment, such as has already been suggested for speciﬁc United Nations treaties, or by a completely new approach distinct from the current test.

6.4 Fair Trial Rather than use the fair trial requirement as a mere supplement to the present test, as was just suggested, some commentators have proposed that extradition be predicated entirely on the presence or absence of due process and fair trial in the requesting State.466 . . . A possible improvement could result from a shifting in emphasis of the criteria determining the extraditability from the act to the actor: instead of taking the nature of the act (political or common) as the decisive criterion, the treatment of the actor in the requesting State would be the criterion to determine his liability to extradition.

This is the approach adopted by the United Kingdom in the Extradition Act 2003. There is no political offence exemption for transnational fugitive offenders from Category 1 or Category 2 countries. However, ss13 and 81 provide that extradition shall be refused if, inter alia, the transnational fugitive offender might be prejudiced

466

WIJNGAERT, supra n6, at p. 203. See also, Keith, Asylum or Accessory: The Non-Surrender of Political Offenders by Canada, 31 U.TORONTO FAC.L REV.93 (1973). Bassiouni, supra n266.

282

Chapter 5

at his trial “by reason of his race, religion, nationality, gender, sexual orientation or political opinions”. Fair trial is a vague concept and, on its own, is limited to those cases where there is a trial only of the issue for which the fugitive was extradited. It should be applied alongside a further test that would refuse a request for extradition where the fugitive would be persecuted on his return – the Extradition Act 2003 recognises this need. Persecution in these matters should be on the usual grounds of race, religion, gender, sexual orientation, ethnic origin, nationality, membership of a particular social group or political opinion,467 and would extend further than the current political offence exemption. There can be no doubt that the humanitarian element of the exception has to be not only maintained, but broadened. Accordingly, one clause in extradition treaties should provide that extradition shall not be granted if the requested State has substantial grounds for believing that the fugitive, if returned, would risk being punished or prosecuted on account of his race, religion, nationality or political opinion, or that his position might be prejudiced for any of these reasons. The same rule should apply if there are substantial grounds for believing that the criminal proceedings in the requesting State were not or will not be in conformity with the minimum procedural guarantees binding under international law, or that the punishment or the circumstances of its execution would have to be considered as inhuman or degrading.468

While a due process clause is not yet ubiquitous in domestic extradition laws and international arrangements, a freedom from persecution clause is almost an automatic inclusion in extradition treaties now.469 So much so, that the Judicial Division of the Dutch Council of State has held that [a] decision granting extradition for serious offences and rejecting a plea based on Article 3(2) of the European Convention on Extradition, cannot be accompanied by a decision prohibiting the person sought, as a refugee, from being returned to the country requesting his extradition, having regard to Article [1F(b)] of the . . . Convention on the Status of Refugees.470

According to Folkerts, if extradition has been granted, then it must imply that the courts of the requested State have found that no persecution will take place in the requesting State and that the fugitive’s application for refugee status would not be granted. Moreover, in McF471 the Dutch Supreme Court held that because the 467

468

469

470 471

Taken in part from Articles 1 and 33 (non-refoulement), 1951 Convention Relating to the Status of Refugees, supra n458. STEIN, supra n7, at p. 380. See also, Stein, How much humanity do terrorists deserve?, in DELISSEN AND TANJA, supra n210, pp. 567 et seq., esp. at pp. 574–80. E.g. Article 5, ECST, supra n89; Article 3, former Anglo-U.S. Supplementary Treaty, supra n108; Article 3, European Convention on Extradition 1957, supra n65. Folkerts v State Secretary of Justice, 74 INT’L L REP.472 at 474 (1978). Supra n91, at 426.

The Political Offence Exemption

283

United Kingdom, the requesting State, was a party to the ECHR and had granted a right of individual petition, it was not at liberty to decide that the fugitives’ rights under Articles 3 and 6 might be violated. In Smyth472 and Howard,473 United States courts, though, acknowledging that ordinarily in the United States extradition process there is no power to inquire into treatment the transnational fugitive offender might face on surrender, held that the former 1986 Anglo-U.S. Supplementary Extradition Treaty permitted investigation of the treatment the particular transnational fugitive offender would face. On the facts in each case, the transnational fugitive offender’s assertion of potential persecution was rejected.474 Other jurisdictions, though, have been prepared to refuse extradition, even where the requesting State was a party to the ECHR. In Finucane,475 the Irish Supreme Court unanimously refused a British request for the fugitive’s surrender on account of well documented fears of the treatment he might receive in Northern Irish gaols at that time;476 the actual decision was based on Article 40 of the Irish Constitution, but it applied the same principles as underlie the standard persecution clause. Thus, a clause prohibiting extradition where the fugitive would be persecuted and where procedural fairness would not be accorded to him in the requesting State ought to be part of all extradition treaties. Even so, there are problems. Both stem from the same root cause. The ﬁrst is that while the requested State may be perfectly satisﬁed that extradition is required, the fugitive may well have serious doubts about the impartiality of the requesting State. In reality, the very act giving rise to the request for extradition may have been founded in distrust of and antagonism towards the requesting State. More pertinently, within western industrialised society it is hard to conceive of one State refusing extradition to a friendly neighbouring State,477 partly because of the ‘club’ mentality of Western Europe, North America and Australia. In fact, the European Court of Human Rights has already held in Fox, Campbell and Hartley v United Kingdom478 that there is a “need for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights”.479 472 473 474

475 476

477

478 479

Supra n126. In re Extradition of Howard 996 F.2d 1320 at 1324 (1993). Howard, supra n473, at 1332–33; Smyth, 61 F.3d 711 at 719–20 (1995). And see, Letcher, Comparative Application of the Non-Discrimination Clause in the U.S.-U.K. Supplementary Extradition Treaty, 5 TRANSNAT’L L & CONTEMP.PROBS 493, esp. at pp. 515–23 (1995). Supra n189. Germany refused an extradition request from Turkey because of human rights concerns where the charge was treason – The Guardian p. 12, 28 MAY 2003. In re Arton, [1896] 1 QB 108 at 115; Government of Greece v Governor of Brixton Prison, [1971] AC 250; Atkinson v U.S.A. Government, [1969] 3 All ER 1317. Series A, Vol. 182 at para. 28 (1990). See also Schermers’ dissent in the European Commission of Human Rights in Bozano v France, Series A, Vol. 111, who commented that amongst States recognizing the same standards of justice, the guarantees found in the extradition process may have to be balanced against the need to

284

Chapter 5

Indeed, a further problem arises from adopting the fair trial test, in that it antagonises those States outside the ‘club’ who feel as though their legal systems are being judged by the western industrialised States, so preventing essential international co-operation. However, given the ECHR, ICCPR, ACHR and ACHPR safeguard everyone’s rights, including those of the fugitive,480 it may be possible to set out the minimum levels of ‘non-persecution’ or ‘fair trial’ required before extradition can be granted by reference to their pertinent provisions. Article 6 of the ECHR, for example, lays down several requirements481 if a trial is to be fair with respect to prompt, public hearings, time to prepare a defence, the provision of legal representation and the right to cross-examine all witnesses. However, all these rights are secondary to the implied right of access to the courts for a fair trial.482 If a fugitive’s access, especially a terrorist’s access, to the courts is limited on grounds of national security, then the whole concept of extradition based on fair trial is redundant. Using Guantanamo Bay as an example, could it be said that trial before a military tribunal/ commission guarantees “rights that are practical and effective”.483 By establishing special courts, the whole understanding of fair trial is altered. Surely, access must still be to the ordinary courts484 if extradition is to

480

481 482 483

484

ﬁght transnational crime. NB. The 2002 European Arrest Warrant has done away with the political offence exemption within the European Union member States and only refers to refusing extradition on the grounds that the “warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons” in the Preamble (paragraph 12), not the main body of the Directive – OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). Warbrick, supra n210, at p. 90. Cf. p. 93. The other reason why the characterization of terrorist acts as breaches of human rights is important is because it is sometimes claimed that a kind of tu quoque principle operates, that an individual renders himself susceptible to losing his human rights if he interferes with the human rights of others. . . . It is at least a possible line of argument that the terrorist may, by his conduct, bring upon himself a diminution of his rights. See also, Brogan, supra n262. Any such diminution as proposed by Warbrick could only be to his derogable rights – see Chahal, (70/1995/576/662), 15 November 1996, with respect to freedom from torture, inhuman and degrading treatment or punishment under Article 3 ECHR. Warbrick, supra n210, at pp. 101–118. Warbrick, supra n210, at p. 114. Artico, Series A, vol.37, at para. 33. Cited in Warbrick at p. 114, supra n210. However, in App. 8299/78, X and Y v Ireland, 24 YB.ECHR 132 at 174 (1981), the Commission held that Dublin’s Special Criminal Court, also juryless, met the requirements of Art.6. The Court in Soering, Series A, Vol. 161, para.113, held that in exceptional circumstances a ﬁnding of a ﬂagrant denial of procedural fairness in the courts of the requesting State might to prevent extradition. In the case of Gary McKinnon who is accused of hacking into United States military computers from the United Kingdom, the English extradition court has demanded an assurance that he will not be prosecuted under Military Order No. 1 before a military commission – The Guardian p. 13, 15 FEB 2006. Warbrick, supra n210, at p. 113.

The Political Offence Exemption

285

depend on the fairness of the trial of alleged political offenders in the requesting State.485 The second point follows on, in that it may not be possible for any trial in the State of dispute to be independent and impartial, either in the actual hearing or the sentence. The appearance of fairness, rather than substantive fairness, is all that may be achieved. A political offender, either by the horror of his act or by aiming his act at the State itself,486 will not be treated as an ordinary criminal and may well be punished for his political motive. Therefore, ‘fair trial’ is both an unwieldy concept to use and is also seriously ﬂawed in its application. For both these reasons, it may be difﬁcult to obtain worldwide support for its introduction as the sole guarantee of the fugitive’s liberty and political freedom. In addition, merely to adjudicate requests for extradition on the fair trial provisions of Article 6, or its equivalent in other regional human rights conventions, would be insufﬁcient. The full protection of the ECHR or other regional human rights conventions would have to be imposed.487 Extradition should be based on non-persecution in the requesting State: there is no point in returning a fugitive to face a fair trial if the State’s behaviour before or after trial contravenes the basic requirements of fundamental human rights. Procedures to combat violent political offenders should never go so far as to include the abrogation of human rights. Terrorism should never be a sufﬁcient ground for permitting derogation from human rights guarantees relating to the physical integrity of the person and to the fairness of judicial procedures.488 In conclusion, whether extradition be based on the fairness of a trial or on nonpersecution, the test suffers from its reliance on the requested State’s concept of procedural fairness. Further, a refusal to extradite results in a much more forthright and overt condemnation of the requesting State. This well-intentioned suggestion suffers from the obvious drawback that it is premised entirely upon Western and democratic notions of due process and other procedural safeguards afforded to individuals accused of crime. . . . [The] suggestion also obliges

485

486 487

488

With regard to extradition to Northern Ireland during the Troubles (1969–98), the United Kingdom government established juryless “Diplock Courts” – Commission to Consider Legal Procedures to deal with Terrorist Activities in Northern Ireland. Cmnd 5185. Sprizzo DJ in Doherty, supra n118, at 276, held that Diplock Courts and justice in Northern Ireland generally in the 1980s were fair and impartial. Cf. Smyth, supra n126, where the Court of Appeals, 61 F.3d 711 at 720 (1995), implied that the Diplock system gave rise to generally discriminatory effects on nationalists and suspected Republican sympathizers. See GRIFFITH, infra n494. In Smyth, supra n126, the courts were prepared to take into account the treatment Smyth would face in prison and after his release. See also, Warbrick, supra n210, at p. 99. Derogation clauses in human rights conventions forbid any limitation on the right to life, on freedom from torture or cruel, inhuman and degrading treatment and on the non-retroactivity of criminal law. See for example, Article 4 ICCPR and Article 15 ECHR.

286

Chapter 5 States to evaluate the judicial processes of another State. The political offence exception was intended to avoid such a situation. Different States have markedly different perceptions of what constitutes a fair trial and consequently would arrive at varying perceptions of other States’ judicial processes.489

Carbonneau may be assuming ideas of fair trial and due process are ‘western’, but he is right that this approach requires the requested State to pass judgement on the judicial process in the requesting State. There is no point introducing an extradition procedure that will be as little accepted as the current one if it is sought to combat the present problems facing the political offence exemption. ‘Fair trial’ and ‘non-persecution’ are inadequate criteria on which to found a new test on their own: they may usefully complement the Swiss proportionality test discussed above, though.

6.5 Summary So far, the proposals have all attempted to return the fugitive to the requesting State. Only the modiﬁed Swiss approach and the minimal development for existing United Nations multilateral conventions seem to have any chance of improving on the present position to any signiﬁcant degree. In fact, it seems apparent from the above discussion that any system that always requires the return of the fugitive to the State of dispute may not be acceptable to all States on all occasions.490 Deciding the cases of fugitives on the basis of the political character or otherwise of the offence or the fairness of the trial on surrender, allows for widely divergent views, the only result of which is that the fugitive escapes prosecution. Moreover, the political offence exemption of extradition law has become, in some cases, part of the foreign policy of States.491 Given that extradition will be refused on occasions whatever test is used, any overall solution, therefore, should have the capacity to deal with the situation where surrender is not granted, even if the streamlining amendments proposed above, which would produce a more coherent application of the exemption, were to be adopted. The new rule, which would supplement the Swiss proportionality test and the amendments to the United Nations anti-terrorist conventions, must not rely exclusively on surrender in order to deal with fugitive offenders. Nor must it rely on the character of the offence alone.

489

490

491

Carbonneau, supra n41, at pp. 38–39. Carbonneau falls into the same trap by using one buzz-word, ‘due process’, to describe another, ‘fair trial’. Viz. The standoff between Libya and the United Kingdom and United States over the surrender of those accused of the Lockerbie bombings. Compare Croissant, supra n152, with Abu Daoud, supra n9, and Affaire Gouvernement Suisse, supra n16, respectively. In this respect there is a return to mediæval practice: SHEARER, supra n38, pp. 5–7 and O’Higgins, The History of Extradition in British Practice, 13 IND.YB.INT’L AFF.78 (1964).

The Political Offence Exemption

287

So it appears to me that the motive and purpose of the accused committing the offence must be relevant and may be decisive.492

The new test, if it is to be acceptable to all States, must fully take into account the motivation of the fugitive. Even anarchists and revolutionary terrorists, along with all other types of political offender, should come within the new rule, otherwise the anomalous distinctions and abuses would reappear from the current system. The reasoning behind this wide application is that if extradition is currently refused because States do not believe the fugitive will be unprejudiced in the State of dispute, it must be because, regardless of the probity of the judicial system, the State of dispute cannot act in a disinterested fashion when the State itself has been threatened.493 Political offenders are frequently punished for their political motive as well as for the crime itself, especially if they are labelled terrorists. An attack on the State, for any reason, has to be punished to prevent recurrence. Thus, the proposal to abolish the political offence exemption in order to replace it with a fair trial requirement is self-defeating – on this analysis, a trial might be procedurally fair in the requesting State, but the fact that the transnational fugitive offender intended to challenge the authority of that State by the criminal activity for which he is now requested, means that there is substantive prejudice. Neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions . . . . [The judges’] principal function is to support the institutions of government as established by law. . . . The confusion arises when it is pretended that judges are somehow neutral between those who challenge existing institutions and those who control those institutions.494

However, this lack of neutrality does not mean that political offenders should be set free in the requested State. Two options are open when a fugitive claims he acted with a political motive. First, there could be trial by an international criminal court or, secondly, the requested State could prosecute.495

492 493

494 495

Schtraks, supra n54, per Lord Reid at 583. See Nelson Mandela’s comment with respect to the United Kingdom’s and the United States’s insistence that the two Libyans alleged to have committed the Lockerbie bombing be tried in Scotland, that it would not be correct for the State to act as “complainant, prosecutor and judge” (Commonwealth Heads of Government Meeting, Edinburgh, 25 October 1997) – see The Guardian p. 1, 27 OCT 1997; see also, The Guardian p. 17, 30 OCT 1997; p. 13, 4 NOV 1997. GRIFFITH, THE POLITICS OF THE JUDICIARY, at pp. 292 and 343 (1997). Bassiouni, supra n266, at pp. 257–59; and BASSIOUNI & WISE, AUT DEDERE, AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW, (1995).

288

Chapter 5

§ II

6.6 International Criminal Court This is not a new idea, at all.496 Two reasons can be given for the establishment of an international criminal tribunal to deal with terrorists, staffed by judges from various countries with a variety of political backgrounds. First, it could try the fugitive only for the common element of the crime and punishment would not be based on the political prejudices inherent in any single State’s judiciary. It is doubtful whether the fugitive would regard any such tribunal as any less biased, but the requested State would be placed in a very awkward position if it refused to give him up for prosecution. Moreover, it would diminish the western monopolisation of this area of the law and, therefore, improve the prospects for a truly international response to the problem, in general, of the political offender and, in particular, of the terrorist. Secondly, it might well lead to the harmonisation of international criminal law with respect to ideologically or politically motivated offenders. One of the major problems with the current system is the divergence in the reasoning of the domestic courts.497 The politically motivated fugitive should be treated in the same fashion regardless of the location of the trial. However, in 1991, in Aspects of Extradition Law,498 I opined that there was little prospect of such a ‘court in the clouds’ being created, except for trials of war criminals. Thus, when the International Law Commission produced its draft Statute for an International Criminal Court in 1994,499 I was afraid, having regard to Article 20(e) of the draft Statute, that I might have had to eat my words:

496

497

498 499

The Proposals of M Laval to the League of Nations for the establishment of an International Permanent Tribunal in criminal matters, 21 Transactions of the Grotius Society 77, (1921); Hudson, The Proposed International Criminal Court, 32 AM.J INT’L L 549, (1938); Pella, Memorandum on the Establishment of an International Criminal Court, U.N. Doc.A/AC 48/3, 17 JULY 1951; Draft Statute for an International Criminal Jurisdiction, 9 U.N.G.A.O.R.Supp. 12 (A/2645), paras. 23–26 (1954); Bridge, The Case for on International Court of Criminal Justice and the formulation of International Criminal Law, 13 INT’L & COMP. LQ 1255 (1964); WOETZEL, REPORT ON THE FIRST AND SECOND INTERNATIONAL CONFERENCES, (1973); FERENCZ, AN INTERNATIONAL CRIMINAL COURT, 2 vols. (1980). The U.S. Congress called on the President in 1986 to look into the possibility of an international court to deal with terrorists – §1201 PL No.99–399, Omnibus Diplomatic Security and Antiterrorism Act, 1986. E.g. Compare the Swiss and United States tests, above. And they are both within western industrialised society. At pp. 156–57. Report of the International Law Commission on the Work of its Forty-Sixth Session, Draft Statute for an International Criminal Court, UN Doc.A/49/355 (1994); hereinafter, Statute. And see Crawford, The ILC’s Draft Statute for an International Criminal Court, 88 AM.J INT’L L 140 (1994), The ILC Adopts a Statute for an International Criminal Court, 89 AM.J INT’L L 404 (1995); and, Symposium on International Criminal Law, vol. 5:2 TRANSNAT’L L & CONTEMP. PROBS. 237 et seq. (1995).

The Political Offence Exemption

289

Article 20 Crimes within the jurisdiction of the Court The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) the crime of genocide; (b) the crime of aggression; (c) serious violations of the laws and customs applicable in armed conﬂict; (d) crimes against humanity; (e) crimes, established under or pursuant to the treaty provisions listed in the Annex,500 which, having regard to the conduct alleged, constitute exceptionally serious crimes of international concern.

The Annex of the draft Statute, inter alia, listed most of the United Nations multilateral, anti-terrorism conventions. It was left, however, to the Preparatory Committee Meetings (PrepComs) to take these proposals further.501 The ﬁnal version of the Statute of the International Criminal Court502 effectively contained only three substantive crimes: genocide, crimes against humanity and war crimes.503 500

501

502

503

The Annex listed grave breaches of the Geneva Conventions and Protocol I (presumably already covered in para.(c)), as well as: 2. The unlawful seizure of aircraft as deﬁned by Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970. 3. The crimes deﬁned by Article 1 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971. 4. Apartheid and related crimes as deﬁned by Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973. 5. The crimes deﬁned by Article 2 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973. 6. Hostage-taking and related crimes as deﬁned by Article 1 of the International Convention against the Taking of Hostages of 17 December 1979. 7. The crime of torture made punishable pursuant to Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. 8. The crimes deﬁned by Article 3 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988 and by Article 2 of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 10 March 1988. 9. Crimes involving illicit trafﬁc in narcotic drugs and psychotropic substances as envisaged by Article 3 (1) of the United Nations Convention against Illicit Trafﬁc in Narcotic Drugs and Psychotropic Substances of 20 December 1988 which, having regard to Article 2 of the Convention, are crimes with an international dimension. A crime of “terrorism” was proposed at PrepCom III, 11–21 February 1997 – A/AC.249/1997/ WG.1/CRP.4, but was ultimately rejected. The International Law Commission simultaneously drew up the Draft Code on Crimes Against the Peace and Security of Mankind (A/51/332, 1996). It deﬁned aggression, genocide, crimes against humanity, crimes against United Nations and associated personnel and war crimes. Done at Rome, 17 July 1998, 37 INT.LEG.MAT 999 (1998) – as corrected by the procés-verbaux. See CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002. Article 5 also includes the crime of aggression, but no deﬁnition could be agreed at Rome, so its implementation is to be deferred to a subsequent review conference in 2009 – see Articles 5.2, 121 and 123. See also, Robinson, ‘The Missing Crimes’ in CASSESE, GAETA AND JONES, at p. 497.

290

Chapter 5

While genocide cannot be a political offence and the very notion that war crimes might encompass actions that could be political in character would contradict the fundamentals of the Swiss approach, crimes against humanity, on the other hand, might be appropriate to deal with a large scale terrorist action – equally not political in character because of the disproportionate and heinous nature of crimes against humanity, but suitable as a vehicle to prosecute those who mistakenly claim their offences to be political.504 Article 7 of the Rome Statute provides in part that: Article 7 – Crimes against humanity 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; ... (f) Torture; ... (h) Persecution against any identiﬁable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as deﬁned in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; ... (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (e) ‘Torture’ means the intentional inﬂiction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;505 ... (g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

As such, the International Criminal Court may be a suitable forum for prosecuting transnational fugitive offenders accused of terrorism.506 As well as proving one of 504

505 506

There is no logic or validity in the argument that since the drafters excluded terrorism from the list of crimes over which the International Criminal Court would have jurisdiction, that terrorism could never fall within the deﬁnition of crimes that were eventually included in the Statute. Author’s note. it is arguable that hijacking or hostage taking might amount to mental torture. See ARNOLD, THE INTERNATIONAL CRIMINAL COURT AS A NEW INSTRUMENT FOR REPRESSING TERRORISM (2004); Schabas, Is Terrorism a Crimes Against Humanity?, 8 INT’L Pk: Yb PEACE OPS 255 (2004).

The Political Offence Exemption

291

the substantive crimes listed in paragraph 1 has been committed, Article 7 has several other elements. The crime in question must be widespread or systematic, it must constitute an “attack”507 that is directed against a civilian population and the accused must have knowledge of the attack. Paragraph 2(a) expands upon the concept of an attack directed against a civilian population. The ﬁrst of two important aspects is that an attack must relate to a course of conduct involving the multiple commission of acts. Technically, as long as there was a policy at the State or organizational level that planned for murder of civilians that would be widespread, then someone who committed one murder after which the plan was prevented from progressing any further could still be charged with crimes against humanity. However, paragraph 2(a) demands that there be “multiple commission of acts”. Thus, an individual would have to be responsible for several murders before Article 7 would potentially be applicable. Consequently, when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating speciﬁc atrocities or vicious acts, in order to determine whether the necessary threshhold is met one should use the following test: one ought to look at these atrocities in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.508

The other important aspect is that the overall policy can emanate from a State or an organization. Therefore, subject to some test as to when a terrorist group might qualify as an organization, there is no reason why someone carrying out its policies should not fall within Article 7. There is no requirement that the attacks have to be continuous as if in an armed conﬂict, merely that they are part of a policy and are not simply isolated or sporadic. The use of hijacked planes to destroy the twin towers of the World Trade Center on 11 September 2001 might fall within the Article 7 deﬁnition.509 There was self-evidently a plan, one can make arguments that it was both widespread and systematic, it was a civilian population that was subjected to multiple murders and the planners knew of the attack. If Al Quaeda is an organisation, then those speciﬁc attacks could be deemed widespread or systematic.510 Moreover, while Article 22.2 states that the deﬁnition of a crime shall be strictly construed and that ambiguity should be interpreted in favour of the accused, to limit crimes against humanity to situations akin to where a rebel 507

508 509

510

Although clearly not an attack within the meaning of Article 49 of Protocol 1 of 1977 to the Geneva Conventions of 1949; crimes against humanity under the Rome Statute do not have to be committed in time of armed conﬂict. Cassese, ‘Crimes against Humanity’, in CASSESE, GAETA AND JONES, at p. 361. Of course, the International Criminal Court only has jurisdiction over crimes committed after 1 July 2002. Cf. Schabas, ‘Is Terrorism a Crime Against Humanity?’, in DOUCET, TERRORISM, VICTIMS AND INTERNATIONAL CRIMINAL RESPONSIBILITY (2005), at p. 270.

292

Chapter 5

movement controls part of the territory of a State in a non-international armed conﬂict is to ignore the fact that Article 7 does not require there to be an armed conﬂict. Subject to ﬁnding it is part of the policy of an organization, a serious terrorist incident might fall within Article 7. The subsequent bombings in Bali, Madrid and London suggest that the events of 11 September 2001 should not be viewed as “isolated or sporadic acts of cruelty and wickedness”. Nevertheless, before looking on the International Criminal Court as the panacea for serious terrorist crimes, it should be noted that Article 5 speaks of the jurisdiction of the Court being limited to “the most serious crimes of concern to the international community as a whole”; in addition, the principle of complementarity will mean that the International Criminal Court will only assume jurisdiction where the territorial State is unable or unwilling to prosecute. Before concluding, a regional, supra-national criminal court is not beyond the bounds of possibility and may be effective. Given the cross-frontier terrorist campaigns that have been seen in mainland Europe, where crimes are committed in several States and arrests subsequently occur in several States too, a supra-national court to hear all the charges, regardless of where they arose, has much to offer.511 In May 1989, the European Parliament adopted the Zagari Report which, inter alia, suggested the establishment of a European court to deal with terrorist cases.512 Nevertheless, realistically even such a regional court was an unlikely response and it would have suffered from one major drawback, in that it might have tended to make terrorists appear to be a special case outside the ambit of ordinary domestic courts and law. It is not surprising that such a court has yet to become more than a mere proposal.

6.7

Aut Dedere, Aut Judicare513

If an international criminal tribunal will not meet the need when extradition to the State of dispute or to the requesting State (if not the same) is refused,514 then the

511 512

513

514

See The Times p. 14, 20 JUN 1990. The Scottish Police Federation supported such a court “to obviate present difﬁculties concerning extradition”. See p. 54, vol.2, HOME AFFAIRS SELECT COMMITTEE, SEVENTH REPORT, PRACTICAL POLICE CO-OPERATION IN THE EUROPEAN COMMUNITY, HCP 363 (1989–90). See BASSIOUNI AND WISE, supra n495. I am also indebted to Tara Murphy, LL.M. in International Human Rights Law 2004–05. E.g. Cheng v Governor of Pentonville Prison, supra n12. Can it be said that the United States was disinterested in attempts to overthrow the Chiang Kai-Shek regime in Taiwan at the end of the 1960s at the height of the Vietnam War? It may be that although politically motivated, a fugitive who killed another politically dedicated person for purely political reasons at the other end of the ideological spectrum, could be returned if the requesting State stood aloof from the dispute. Eg. It was reported in 1985 that a left-wing terrorist group had killed a right-wing newspaper publisher in Greece. In such circumstances it is possible that the trial in Greece would be as neutral as any normal murder case, but this cannot be certain. (The Guardian p. 8, 22 FEB 1985). This position

The Political Offence Exemption

293

Grotian proposition that the requested State must prosecute seems the best response. The concept already exists in all the United Nations multilateral conventions515 and it is included in the Draft Code of Crimes Against the Peace and Security of Mankind.516 Article 9 – Obligation to extradite or prosecute Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in article 17, 18, 19 or 20 is found shall extradite or prosecute that individual.

According to Bassiouni, the obligation may apply to all international crimes however prescribed.517 Murphy argues that this general rule is not the case, that the duty to prosecute or extradite only arises where it is explicit in the aforementioned conventions.518 Reydams suggests that the position is that where there is a treaty obligation and the transnational fugitive offender is found on the territory of a State, then that State must extradite or prosecute.519 As well as Bassiouni, the International Law Association, in a draft convention on international terrorism set out in Murphy’s Punishing International Terrorists, has also indicated that there may be a general duty to extradite or prosecute. Article 7 States must try or extradite (aut dedere, aut judicare) persons accused of acts of international terrorism. No State may refuse to try or extradite a person accused of an act of international terrorism, war crime, common crime which would be a war crime but for the absence of a legal status of belligerency, or a crime against humanity, on the basis of a disagreement as to which of these legal categories properly applies to the situation.

515

516 517 518 519

would be in line with Viscount Radcliffe’s views in Schtraks v Government of Israel, supra n54, 591–92. There may, for instance, be all sorts of contending political organisations or forces in a country, and members of them may commit all sorts of infractions of the criminal law in the belief that by doing so they will further their political ends: but, if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders. However, even here it may be better to refuse extradition and try the offender in the requested State lest in future this exception be abused. Supra n425. See also LILLICH, THE HUMAN RIGHTS OF ALIENS IN CONTEMPORARY INTERNATIONAL LAW (1984) at p. 122 where he quotes Judge Baxter, Treaties and Custom, 129 RECUEIL DES COURS 25 at 57 (1970–I), Hague Academy of International Law. See also Starke, Treaties as a Source of International Law, 23 BRIT.YB.INT’L L 341 (1946); Lillich and Paxman, State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities, 26 AM.U.L REV.217 at pp. 276–307 (1977). Supra n516. Bassiouni, supra n239, at pp. 28–31 and 34 et seq. See Judge Baxter in LILLICH, supra n515. MURPHY, supra n220, at p. 62. REYDAMS, UNIVERSAL JURISDICTION (2003) at pp. 61–68 and 79–80.

294

Chapter 5

Nevertheless, while extradition itself is premised on the basis of some formal agreement and, that in the absence of a treaty, it is only a moral obligation arising out of the comity of nations, then the better view is that the principle aut dedere, aut judicare still only applies, at present, when expressly formulated in multilateral conventions on international criminal law.520 It may be that the provision in a particular treaty has become declaratory of customary international law521 with regard to the relevant crime, but there is no generic duty in international law, at least so far, of aut dedere, aut judicare. Regardless, of the precise scope of the duty, a much more important question is to determine how to apply the duty. Is it co-existent or disjunctive?522 If it is disjunctive, then the primary response must be to extradite and, where that is not carried out, only then would the supplementary duty to prosecute arise. This disjunctive approach would seem to be the approach envisaged in relation to the United Nations multilateral conventions. There is still a preference for the crime to be dealt with where it occurred.523 However, it would probably be more useful in combating the problems of the political offence exemption if a co-existent analysis of the principle aut dedere, aut judicare were adopted. This would allow the requested State to choose from the outset whether to extradite or prosecute – it would be a proper alternative, an independent response to dealing with politically motivated fugitives.524 Instead of it being a last resort if extradition fails, trial in the requested State would be elevated to a more pro-active status in international criminal law. At present, extradition, or some variant thereof, is seen as almost the only way of bringing fugitive offenders to justice. If it is accepted that the principal aim must be to prosecute the fugitive and that international public order requires international co-operation and mutual assistance, then a more positive acceptance of trial in the requested State is necessary. Along with all the other responses to the problems facing the exemption, aut dedere, aut judicare is growing in importance – it might further the objective of prosecuting fugitive offenders if the duty were treated as co-existent rather than disjunctive, and if it were to be accepted that with respect to all politically motivated offenders there should be a genuine choice between extradition and prosecution in

520

521

522 523 524

See REYDAMS, UNIVERSAL JURISDICTION (2003) at p. 80: [Evidence] of opinio juris on the part of States that international crimes can under certain circumstances be subject to universal jurisdiction was found in resolutions by intergovernmental bodies and in ofﬁcial drafts and studies.” See North Sea Continental Shelf Cases (FRG v Denmark and The Netherlands), 1969 ICJ Rep. p. 3, at paras. 70 et seq. See Bassiouni, supra n239, at p. 36. See Lockwood, supra n266, and Lillich, supra n402. Or even generally – see Cuba’s refusal to extradite Robert Vesco to the United States because it would be immoral; nevertheless, Cuba investigated Vesco’s alleged crimes to see if he should be prosecuted there – The Guardian p. 12, 20 JUN 1995.

The Political Offence Exemption

295

the requested State.525 Such an understanding of the obligations imposed in providing mutual assistance to other States would allow a politically motivated offender to be prosecuted before an impartial tribunal. Yet problems exist with this procedure, too. The ﬁrst concerns the assumption of criminal jurisdiction526 generally by the requested State over all offences committed anywhere in the world by anyone, given that they acted with a political or ideological motive. Full consideration of jurisdiction over criminals has been dealt with in Chapter Three, but it will be remembered that there are generally held to be ﬁve main grounds for exercising competence over an accused person. It is selfevident that if a State is to have comprehensive jurisdiction over any politically or ideologically motivated offender who is found in its territory, then only the universality principle will be sufﬁcient. The other bases of jurisdiction, territoriality, active and passive personality and the protective principle all founder on their inapplicability to States not involved in the political or ideological dispute in question. Such bases of jurisdiction rest on a connection with the crime, one of the very things that trial in the requested State intends to avoid. The only ground on which the requested State could effectively exercise jurisdiction is the universality principle.527 The universality principle allows a State to assume jurisdiction over all crimes regardless of the nationality of the offender and the locus delicti. Universal jurisdiction may arise through treaty or custom. An international crime is such an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under normal circumstances.528

English jurisprudence, for instance, happens to be extremely strict in these matters and restricts this principle to cases of piracy,529 war crimes and where the multilateral anti-terrorism treaties impose it.530 Other States are more liberal in their use of 525

526 527

528

529

530

Like earlier United Nations multilateral anti-terrorist conventions, the Financing and Bombings Conventions require a State party that has information that a person who has, or is alleged to have, committed a convention offence is present in its territory, to investigate the facts and, if the circumstances so warrant, that the person is made available for extradition or prosecution. Where it does not extradite, then the State is obliged to undertake steps to prosecute. E.g. Articles 7 and 8 of the Bombings Convention. See Chapter Three above. See generally, Randall, Universal Jurisdiction Under International Law, 66 TEXAS L REV.785 (1988). Re List, Case No.215, United States Military Tribunal at Nuremberg, 8 U.N.LRTWC 1 at 47 (1948); 15 Ann.Dig.632 at 636 (1948). White, The Marshall Court and International Law: The Piracy Cases, 83 AM.J INT’L L 727 (1989). Supra n425. See also MURPHY, supra n220, at pp. 132–33. Cf. COUNCIL OF EUROPE, EXTRATERRITORIAL CRIMINAL JURISDICTION, which refers to jurisdiction under the multilateral treaties as representative; this seems to be at most a subset of universal jurisdiction.

296

Chapter 5

universal jurisdiction. There would, however, seem to be little theoretical problem in expressly extending it through an international agreement to cover all ideologically and politically motivated offenders. This approach to dealing with politically motivated offenders has already been adopted by the Austrian authorities in two cases involving fugitives from the former Eastern bloc. In The Universal Jurisdiction (Austria) Case,531 the Supreme Court of Austria held that it could assume jurisdiction in a representational capacity. The extraditing State also has the right, in the cases where extradition for whatever reason is not possible, although according to the nature of the offence it would be permissible, to carry out a prosecution and impose punishment, instead of such action being taken by the requesting State.

The Hungarian Deserter (Austria) Case532 involved the shooting of a border guard by a Hungarian soldier deserting to the West. Again, the Austrian Supreme Court exercised jurisdiction over the fugitive, extradition having been refused partly because he would be in danger of life and liberty if surrendered after having ﬂed for political reasons. If trial in the requested State is to be a full alternative to extradition, then, on present law, a new United Nations multilateral convention will have to provide for universal jurisdiction expressly – a co-existent analysis of the duty to extradite or prosecute does not exist in practice, so international legislation is needed. Terrorism per se is not a universal crime as yet,533 the multilateral and regional conventions merely outlaw aspects of terrorism. Otherwise, there would be no need to include a universal jurisdiction clause in each new convention; those clauses are not declaratory of some principle of customary international law that holds that politically or ideologically motivated offenders are subject to prosecution in whichever State they are apprehended. However, on a purely quid pro quo basis, if extradition is to be refused to the State of dispute in a case involving a politically or ideologically motivated offender, then trial ought to take place in the requested State. To the extent that the fugitive has ‘chosen’ the requested State, he has voluntarily submitted himself to its jurisdiction, rather than that of the State of the dispute. Furthermore, a start has been already made in several countries. Section 45 of the Australian Extradition Act 1988 allows the courts to assume jurisdiction over Australian citizens whose extradition fails or is prohibited. Of course, this is an example of the active personality principle rather than universality, but it is based on the same need for offenders to be prosecuted no matter where they are found. 531 532 533

28 INT’L L REP.341 at 342 (1958). 28 INT’L L REP.343 (1959). In Gaddaﬁ 125 INT’L L REP.490, it was held that terrorism was not at that time an international crime justifying the lifting of Head of State immunity – of course, that would suggest that it is an international crime over which States can exercise jurisdiction in other cases.

The Political Offence Exemption

297

The Italians practise true universality under Article 10(2) of the Penal Code. If extradition is refused the fugitive may be tried in Italy as long as the crime bears a minimum sentence of three years imprisonment. Furthermore, Greek law gives its domestic courts jurisdiction over anyone who had been requested for extradition, apparently with no limits.534 A more limited step was taken by the British and Irish governments in relation to the Northern Irish troubles. It was still a secondary alternative to extradition and it was limited to a list of scheduled offences. The British Criminal Jurisdiction Act 1975 and the Irish Criminal Law (Jurisdiction) Act 1976 allowed courts in one country to try offenders for speciﬁed crimes committed in the other. The listed offences were those generally attributable to terrorism. The Acts prevented terrorists escaping liability through the political offence exemption – since Irish courts felt unable during the 1970s to grant extradition for members of the IRA because of the exemption, the Acts allowed for prosecution in the requested State.535 However, there are problems with exercising universal jurisdiction. In the past, for instance, States have been unwilling to prosecute other States’ political offenders and this disinclination may still cause problems.536 Nonetheless, the above noted developments in Australia and throughout Europe may indicate a general change of approach. The United Kingdom prosecuted Tanzanian hijackers in 1983.537 Further, the present unwillingness is probably one of the results, rather than causes, of the current preference for extradition. If prosecution in the requested State is seen as a co-existent duty, as Bassiouni explains,538 the position may change. Another hurdle, but one which is only apparent and not real, involves the question of whether the assumption of universal jurisdiction interferes with the requesting State’s domestic jurisdiction. The unilateral assumption of universal jurisdiction could be deemed an unfriendly act under the General Assembly’s Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations,539 in particular, the sixth principle, that of the sovereign equality of States.540 The proposed 534 535

536

537

538 539 540

The Guardian p. 11, 13 SEP 1990. See Fusco v O’Dea [1994] 2 IR 93 (HC); [1994] 2 ILRM 389 (SCt); unreported, 1992 No.145P, 28 June 1995 (HC). See also the conviction of Gerard Tuite, The Guardian p. 2, 14 JUL 1982 and p. 2, 3 MAY 1983. See EVANS & MURPHY, LEGAL ASPECTS OF INTERNATIONAL TERRORISM (1978), Ch.9, by Evans, esp. pp. 503–05. R v Moussa Membar et al. [1983] CRIM.L REV.618. See also the trial of Iraqi hijackers ﬂeeing Saddam Hussein’s regime – The Guardian pp. 1 and 2, 28 AUG 1996; p. 4, 1 NOV 1997. Supra n239. Annex to UNGA Res.2625 (XXV), 24 October 1970. NB. Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium), ICJ 2002, General List No. 121. See Wickremasinghe, Arrest Warrant of 11 April 2000 (DRC v Belgium), Preliminary Objections and Merits Judgment of 14 February 2002, 52 INT’L & COMP.LQ 775 (2003); McLachlan, Pinochet Revisited, 51 INT’L & COMP.LQ 959 (2002). Turns, Certain Criminal Proceedings in France (Republic of Congo v France), Provisional Measures, Order of 17 June 2003, 53 INT’L & COMP.LQ 747 (2004).

298

Chapter 5

multilateral convention providing for trial in the requested State as an alternative to extradition, is therefore essential.541 As stated above, as the position stands, without such a convention, which would have to receive wide international support, there can be no progress beyond what already exists; that is, the possibility of trial in the requested State only as a last resort in a limited number of speciﬁed cases. To go beyond that minimal understanding of aut dedere, aut judicare, there would need to be a new, widely accepted convention, concluded under the auspices of the United Nations. Other problems still exist,542 especially with regard to the procedural rules necessary to implement the suggested approach.543 Evidence of a crime committed in the requesting State will be hard to obtain in the requested State, the fugitive, in particular, having a very much more difﬁcult job, even though many treaties now provide for mutual assistance in criminal matters. Matters of evidence, however, create a further and more intractable problem. The common law system of justice and rules of evidence provide that in trials of serious crimes, the jury must hear the evidence from witnesses in person. Rarely will written evidence be accepted because it is impossible to cross-examine a document. In civil law countries, the lack of witnesses at trial is less of a problem, because an “investigating magistrate” can travel to the locus delicti to receive evidence, but it would be impracticable for a British judge and jury to follow the same course of action. Abolishing jury trials for political offenders would be contrary to the constraints of fairness and would invoke the criticism levelled at Diplock Courts in Northern Ireland, so either the witnesses must be brought to the requested State or the use of written evidence after cross-examination by lawyers in the locus delicti must be permitted. It may well be that a solution will have to be found soon, even if this general power to assume universal jurisdiction is not adopted, for many existing treaties now provide for prosecution in the requested State if extradition is refused. In conclusion, even if a very broad power to try a fugitive offender in the requested State existed alongside all the other responses to the problems of the political offence exemption, there would still be safe havens. However, it should prevent politically motivated offenders, usually terrorists, from ﬁnding protection in western industrialised society. Even where a State is unwilling to return the fugitive, for whatever reason, international public order can still be upheld by trial in the requested State and the fugitive’s human rights will not be prejudiced. Undoubtedly, extradition will continue to be the favoured method of dealing with

541

542 543

On the customary status of the Declaration, see the Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v United States), 1986 ICJ Rep. p. 14, esp. at paras. 188–205 and 228. See, for example, SHEARER, supra n38, pp. 68–72. Such as the very practical problems of complexity, delays and holding a jury trial – The Guardian p. 7, 20 MAY 2004.

The Political Offence Exemption

299

fugitive’s, but a positively received duty to prosecute whenever surrender is denied will greatly enhance the effectiveness of international criminal law in this ﬁeld. Moreover, a further beneﬁt may be derived from an enhanced duty to prosecute. Currently there is no State responsibility norm with respect to how States deal with fugitive offenders. Extradition is the prerogative of the State in which the fugitive is found.544

If a State were to be in breach of such a new norm, then a claim could be made on behalf of those individuals injured by an attack by the State of which they are citizens.545 If a duty were imposed on State to prosecute546 all those not extradited because of an alleged political motive, then a sanction would be available in the form of money damages or other satisfaction from an arbitration claim if the requested State did not fulﬁl its obligations. Lillich and Paxman,547 citing several other commentators, accept that the obligation to extradite or prosecute all politically motivated offenders remains essentially de lege ferenda. However, they go on to suggest that test cases should be brought against recalcitrant governments.548 Murphy, for his part, initially dissented from this view.549 He used to think that the defendant State would probably not agree to go to arbitration and that United States pressure might adversely affect international relations. Cassese is even less optimistic, arguing that States in breach of such a norm are hardly likely to be deterred by the usual peace time sanctions550 – to a certain extent, the experience with Libya over the failure to hand over those accused of the Lockerbie bombing, despite United Nations sanctions,551 bore out these doubts. Nevertheless, despite such misgivings, an initiative was in part undertaken in relation to hijacking by the Bonn Declaration of 1978.552 This joint approach, adopted by Canada, France, Italy, the then Federal Republic of Germany, Japan, the United Kingdom and the U.S.A., takes effect if hijackers are not extradited or prosecuted and it prevents ﬂights to and from the offending State. It was applied to Afghanistan and the threat of it forced South Africa to try the mercenaries who attempted to overthrow the

544 545

546 547 548 549

550 551 552

Lillich & Paxman, supra n515, at p. 300. E.g. Galvan Case (Mexico v United States), (1927) Opinions 408, 4 R.INT’LARB.AWARDS 273 (1927). See Bassiouni, supra n239, and the same author’s Inquiry, supra n237, at p. xlv. Supra n515, at pp. 304–05. Supra n515, at pp. 312–13. See EVANS AND MURPHY, supra n536, Ch. 12 esp. pp. 568–70 and MURPHY, LEGAL ASPECTS OF INTERNATIONAL TERRORISM: SUMMARY REPORT OF AN INTERNATIONAL CONFERENCE, pp. 20–26. (Studies in Transnational Legal Policy No. 19, ASIL 1978); hereinafter, ASIL SUMMARY REPORT. Cf. MURPHY, supra n220, at pp. 134–35. Supra n265, at p. 593. See The Guardian p. 16, 26 SEPT 1997. Supra n417.

300

Chapter 5

Seychelles government.553 Furthermore, within Europe, the European Convention on Human Rights may require States to take action to prevent interference with Convention rights by individuals, thus necessitating effective measures to combat, inter alia, threats to life and inhuman and degrading treatment perpetrated by politically motivated offenders.554 A failure either to surrender or to prosecute violent terrorists might be a breach of Articles 2 and 3 of the ECHR, and it is likely that similar obligations would arise under the ACHR and the ACHPR. The Joinet Principles principally challenge whether the ambit of the political offence exemption should extend to serious international crimes, but would also suggest that if a State does refuse to surrender a transnational fugitive offender, then it shall submit her/his case for prosecution.555 Principle 27. Restrictions on Extradition Persons who have committed serious crimes under international law may not, in order to avoid extradition, avail themselves of the favourable provisions generally relating to political offences or of the principle of non-extradition of nationals. Extradition should always be denied, however, especially by abolitionist countries, if the individual concerned risks the death penalty in the requesting country.

7. Conclusion Various responses have been proposed to render the political offence exemption ﬁt for the times. Some would have more success than others. The main obstacle will always be obtaining international agreement to amend and restrict the exemption: its liberality is deep-rooted in historico-legal ‘folklaw’. However, it is suggested that the three most proﬁtable paths to follow would include, ﬁrst, adopting the Swiss Predominance and Proportionality Test, coupled with a protection from persecution clause, to deal with the fugitive offender claiming the political offence defence. The Swiss general analysis of the exemption can be applied to any case and can be seen as a continuation of existing policy. To supplement this ﬁrst step, it is likely that the widely accepted United Nations multilateral conventions on international crimes could be each amended to make it explicit that the political offence exemption is redundant with regard to their speciﬁed offences. Making explicit what is already the case, may well aid a more general outlawing of crimes 553 554

555

Busuttil, supra n417. See Article 1, ECHR, Warbrick, supra n210, pp. 97–99 and Airey v Ireland, Series A, vol.32, para.24. See also, Osman v United Kingdom, (87/1997/871/1083), European Court of Human Rights 28 October 1998. The Administration of Justice and the Human Rights of Detainees, Question of the impunity of perpetrators of human rights violations (civil and political). Revised ﬁnal report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub. 2/1997/20/Rev. 1, 2 October 1997.

The Political Offence Exemption

301

of excessive violence. Finally, the nascent obligation to extradite or prosecute must be nurtured so that it is available for all politically or ideologically motivated offenders as an alternative to extradition. With all the above in force, international public order will be maintained, fugitives will not escape justice, but human rights will not be infringed either. The other responses considered above will also be continued, but it is suggested that the most effective way forward is to adopt the three policies outlined here. In the long term, the best way forward may be to replace the exemption with trial in the requested State whenever a political dimension exists to the offence for which the fugitive is requested, but this would be too radical a step at present. Before concluding, two other issues must be considered. The ﬁrst concerns whether the exemption, however deﬁned, should remain a judicial matter or whether it should be a matter for the executive alone. At present, the appropriate executive authority is left with a discretion not to extradite when the courts have ordered the fugitive’s surrender. The position is thus, for example, in the United Kingdom,556 the United States,557 Switzerland, Australia and France, although following the decision of the Conseil d’Etat in Affaire Gouvernement Suisse,558 the French executive cannot refuse extradition to another liberal democracy once the courts have ordained it except in the most anomalous of cases. The argument in favour of reallocating the decision making process is twofold. First, the executive has better access to information on political and diplomatic matters and, secondly, it is in a better position to negotiate with the requesting State concerning the fugitive’s treatment on return.559 These arguments, though, might still be satisﬁed by a ﬁnal discretion, rather than absolute control. The executive may be in the best position to gather all the relevant information, but it must also be seen to keep its distance from ‘judging’ the motivation behind the requesting State’s application for the surrender of the accused.560 Stein, though, advocates that the political offence exemption as it is known at present ought to be abolished, and that it be replaced by a freedom from persecution clause and, more radically, that the requested State should have the power to refuse extradition where it would be contrary to its own national interests.561 He combines humanitarian concern for the fugitive’s safety if surrendered with foreign policy considerations. Such an overt condemnation of the requesting State would not be appropriate for the courts and extradition would have

556

557

558 559 560 561

One example of its exercise is in the Kotronis case, Government of Greece v Governor of Brixton Prison, [1971] AC 250. U.S.C.§3186. The power is rarely exercised: Bassiouni, International Extradition, a Summary of Contemporary American Procedure and a Proposed Formula, 15 WAYNE L REV.733 at p. 757 (1969). Supra n16, at 61–62. Viz. Soering, supra n483. For an interesting interpretation of this issue, see MURPHY, supra n220, at p. 69. Supra n7, at p. 380.

302

Chapter 5

to become the sole preserve of the executive. While such a proposal may seem unlikely to gain acceptance in the near future, it is worth noting that Article 1(a) of the Swiss extradition law adopts this approach,562 but only as part of the wider Swiss understanding of the political offence exemption recommended above. For the time being, however, Stein’s foreign policy test is only a supplement to the traditional operation of the political offence exemption, even in Switzerland. The second argument for handing the decision over to the executive is much more cynical. The present judicial participation in the decision, it is alleged, merely serves to add an air of impartiality and objectivity that may not be deserved; the Abu Daoud and Gouvernement Suisse cases most obviously reveal this hidden agenda.563 However, to adopt such an attitude would, in fact, be a case of “smiting one’s nose to spite one’s face” and would remove the last vestiges of protection that do exist. Judicial determination has always been found preferable to ad hoc political judgments responsive to passing political circumstances.564

The justiﬁcation for retaining judicial discretion is that otherwise extradition of fugitives would become a matter of foreign policy to the detriment of human rights. Thus, the national interest will become almost the exclusive consideration, disregarding any concern for the effect of the decision to grant or deny extradition on the maintenance and preservation of world public order and without regard for the individual’s human rights or concern for his prosecution or punishment.565

Indeed, one aim of terrorism, in particular, is to create an oppressive, reactionary State leading to an alienated population who will increasingly rebel. The above suggestion to make the decision an executive one, like the earlier idea of trying to place politically motivated offenders outside the exemption, will create more problems than it solves, in part, because, by taking the decision out of the realm of the courts,

562

563 564

565

Swiss Law on International Judicial Assistance in Criminal Matters, 20 March 1981, 20 INT.LEG.MAT.1339 (1981), as amended 4 October 1996 (supplied by the Federal Ofﬁce for Police Matters, Bern) – the text is a combination of both translations. Supra nn9 and 16. Anglo-U.S. Supplementary Treaty, S.HRG.99–703 re TR.DOC 99–8, 1 AUG 1985, per Bassiouni at p. 302. Bassiouni, supra n266, at p. 232. See also U.S. v Gonzalas, 217 F.Supp 717 (1963), which highlights how State terrorism could be encouraged by executive control according to Sternberg and Skelding, supra n407, at pp. 154–55 (1983). Robinson has suggested that extradition should be seen as an element of foreign policy. The Commonwealth Scheme Relating to the Rendition of Fugitive Offenders: A Critical Appraisal of some Essential Elements, 33 INT’L & COMP. LQ 614, esp. at pp. 617 et seq.

The Political Offence Exemption

303

it treats terrorists as distinct from ordinary criminals. Further, it aids their claim that they are engaged in a ‘war’ and that they are not merely violent common criminals. Most importantly and ﬁnally, it infringes human rights. The extradition system as a whole will be discredited because of the repressive measures directed at politically motivated fugitives. Being aware of the danger . . . a [repressive] law poses of undermining or even destroying democracy on the grounds of defending it, [the Court] afﬁrms that the Contracting States may not, in the name of the struggle against . . . terrorism, adopt whatever measures they deem appropriate.566

The ﬁnal issue to be considered, concerns whether there are political measures that could be taken to coerce States who harbour politically motivated offenders without prosecuting them. It has already been suggested that monetary compensation could be sought through arbitration if a State were to be in breach of a responsibility norm through harbouring politically motivated fugitive offenders. Even Murphy, who originally disapproved of such actions, has come round to believe that it may now be necessary.567 Nevertheless, Murphy’s original views568 with regard to the other measures of self-help, such as armed force, economic sanctions and diplomatic protest, should still be abided by. As for diplomatic protest, as Murphy commented in 1978, [this] is likely to be the most effective measure of self-help that can be employed to induce recalcitrant States to join co-operative efforts to prevent and suppress international terrorism.569

To sum up, the political offence exemption is still very much a ‘hot issue’.570 So hot, indeed, that many responses to its problems have been devised. Most of these responses have been ad hoc and, thus, lack coherence and long-term acceptability. The proposals set out at the beginning of this Conclusion present the best way forward with regard to dealing with individual fugitives as they come before the courts, for the time being. However, a global solution to the problems that create politically motivated offenders, of whatever type, is beyond the ability of any statute, treaty or this commentator.

566 567 568 569 570

Klass, Series A, vol. 28, para. 49. Supra n, at pp. 134–35. See ASIL SUMMARY REPORT, supra n, at pp. 20–26. MURPHY, supra n549, at p. 26. See also Cassese, supra n265, at p. 607. More so in the rest of the world than in the United States, where abduction from or extraordinary rendition to another State has primacy – so much for the sovereign equality of States.

304

Chapter 5 [The] international community . . . must summon the necessary political will to delve into the reasons why the frustrations of the dispossessed are vented in this manner. A glib condemnation of terrorism alone, without a scientiﬁc and impartial study of its origins will not . . . eradicate the phenomenon.571

571

The Ghanaian representative, Mr Ghebo, to the U.N. Security Council, cited in Cassese, supra n265, at p. 608.

Chapter 6 Irregular Responses to International Crimes With faster and cheaper means of travel, it is becoming increasingly easier for criminals to ﬂee from the country where the crime was committed and seek refuge in another State. Generally, as has been discussed, the country where the crime was committed will request the return of the fugitive from the requested State under the terms of an extradition treaty. This treaty, as previously explained, will lay down the procedure to be followed on such a request and will provide certain extra defences for the fugitive not available to him in a domestic trial. Occasionally, however, extradition may be impossible or too slow. For instance, there may not be a treaty between the requesting and requested States1 or, even if

1

NB. Several multilateral anti-terrorism treaties provide that where parties to that treaty require treaty relations with the other State before extradition can proceed, that treaty can act as a surrogate extradition treaty. See Article 8.2, Convention for the Suppression of the Unlawful Seizure of Aircraft, done at the Hague, 16 December 1970, 10 INT.LEG.MAT.133 (1971); Article 8.2, Montreal Convention of 1971 on Unlawful Acts Against the Safety of Civil Aviation, 10 INT.LEG.MAT.1151 (1971); Article 8.2, New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents, 13 INT.LEG.MAT.42 (1974); Article 10.2, 1980 Taking of Hostages Convention, 18 INT.LEG.MAT.1456 (1979); Article 9.2, International Convention for the Suppression of Terrorist Bombings 1998, 37 ILM 249 (1998); and, Article 11.2, International Convention for the Suppression of the Financing of Terrorism, Annex to UNGA Res. 54/109, 25 February 2000. The Council of Europe Agreement on illicit trafﬁc by sea,

306

Chapter 6

there is, the crime may not be extraditable or the fugitive may have a defence or, ﬁnally, the length of the extradition proceedings may give the fugitive time to ﬂee again.2 In such cases, if the requesting State has a strong enough interest in prosecuting the fugitive, it may try to acquire his appearance before its courts by alternative means. These means are usually either abduction or collusive deportation. In the case of the former, the requesting State actively utilises de facto or irregular methods, while in the latter case it is more passive as the requested State takes the measures to avoid the strict regime of extradition law. Where the requesting State abducts the fugitive from the requested State, the rights of both the fugitive and the requested State may have been violated, giving rise to separate rights of action. Before considering alternative forms of rendition, however, one other response to international crime is increasingly being considered: targeted killings.3 Admittedly, this response is limited to alleged terrorists, not all transnational fugitive offenders. Nevertheless, it represents a radical departure from previous responses to international crime. The closest analogy would be to allow the police force in a country to shoot a serious criminal without warning. Such would undoubtedly be considered to be an unlawful killing. However, the practice of Israel with respect to leading Palestinians in Hamas and other similar groups, and the United States in relation to Al Qaeda after the events of 11 September 2001 indicates that it is not considered wholly unlawful in the context of international crime. Those who argue in its defence equate it with the killing of an enemy combatant in time of armed conﬂict;4 such a practice is entirely lawful. Therefore, the so-called War on Terror takes on a new signiﬁcance. If the law of armed conﬂict applies to the war on terror, then military targets can be attacked without warning, subject to certain rules on the means and methods to be employed. However, such a stance is overly

2 3

4

implementing Article 17 of the United Nations Convention against illicit trafﬁc in narcotic drugs and psychotropic substances, ETS 156, allows for surrender by the intervening State to the ﬂag State without extradition under Articles 13–15; it is due to the special nature of intervention. [When] the intervening State requests authorisation from the ﬂag State, it applies to have enforcement jurisdiction in the form of a ‘loan’. The jurisdiction which the intervening State exercises is thus fragile and totally dependent on whether the ﬂag State exercises its preferential jurisdiction. If it does so, a restitutio in integrum should take place and the surrender of persons and property should be expedited. (Explanatory Report, paragraph 70) E.g. R v Governor of Pentonville Prison, ex p.Teja, [1971] 2 All ER 11. See the killing of a member of the Hamas military command in Damascus – The Guardian p. 15, 26 SEP 2004. For discussion of the issues, legal and moral, see Michael P. Scharf, ‘In the Cross-Hairs of a Scary Idea’, op-ed, The Washington Post B-1, 25 APR 2004. See also, Greenwood, International law and the ‘war against terrorism’, 878 INT’L AFF.301 (2002); Ben-Naftali and Michaeli, Justiceability: A critique of the alleged non-justiciability of Israel’s policy of targeted killings, 1 JICJ 368 (2003); Ben-Naftali and Michaeli, ‘We Must Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 CORNELL INT’L LJ 233 (2003); Watkin, Canada/ United States Military Interoperability and Humanitarian Law Issues: Land Mines, Terrorism, Military Objectives and Targeted Killing, 15 DUKE J.COMP. AND INT’L L 281 (2005).

Irregular Responses to International Crimes

307

simplistic.5 The laws of armed conﬂict were designed for a situation of armed conﬂict, not to respond to sporadic attacks.6 If there were an immediate response to an act of terrorism, it might be argued that the whole formed an armed conﬂict that allowed for the killing of enemy combatants. If, on the other hand, there is a delay between the act and the response, it is difﬁcult to ﬁt it into the traditional model pertaining in armed conﬂicts. Furthermore, if the response is undertaken on the territory of a third State, the latter might well assert that it has been the subject of unlawful aggression.7 Conversely, the State carrying out the targeted killing would argue that it should not have to wait for the next attack by the terrorist organsiation to be under way before it can respond and that it ought to be able to rely on the principle of anticipatory self-defence.8 Even if the targeted killing is deemed to fall within the laws of armed conﬂict, the rules relating thereto protect noncombatants. While civilians cannot be targeted, if they are killed or injured during an attack on a military target, then as long as the means employed were discriminate and proportionate, there is no violation of the laws of armed conﬂict.9 What is more difﬁcult is the targeting of persons previously involved in terrorist activities, but who at the time of the targeted killing have returned to their normal daily lives.10 The laws of armed conﬂict are based on the idea of an active military force, whereas terrorist organisations depend on people operating covertly from within the ordinary population. Targeted killings are not unambiguously illegal, but they blur the lines between international criminal law and the international law or armed conﬂict. They give rise to so many concerns that their use must be deprecated. If international criminal law is to develop and gain respect amongst the 5

6

7

8

9

10

For one thing, one needs to address both the ius in bello and the ius ad bellum. The ius in bello permits the killing of enemy combatants. On the other hand, the UN Charter prohibits the use of force by States unless it is in self-defence (Articles 2.4 and 51). It may be that any response to an initial act of terrorism would constitute the use of force and a possible breach of international law. Moreover, the ius ad bellum continues to be applicable during the armed conﬂict alongside the ius in bello – the seminal work is Greenwood, The relationship between ius ad bellum and ius in bello, 9 REV.INT’L STUDIES 221 (1983). See Article 1.2, Second Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts 1977, 1125 UNTS 609, 16 INT.LEG.MAT.1442 (1977). Although regard would need to be had to the Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v USA), [1986] ICJ Rep. p. 14, as to whether this third State was providing such support to the terrorist organisation that it was implicated in the original ‘armed attack’. See The Caroline case, 29 BFSP 1137–38, 30 BFSP 195–96 – it would be necessary to prove that there was “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” (from a letter from United States Secretary of State Webster to the United Kingdom’s Lord Ashburton). See Article 51, First Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts 1977, 1125 UNTS 3, 16 INT.LEG.MAT.1391 (1977). The targeting of political leaders associated with terrorist organisations might be justiﬁed if one considers the enterprise to be governed by the laws of armed conﬂict, but who else in what might be a very loose organisation?

308

Chapter 6

international community, then the focus must be on bringing persons to trial, not on extra-judicial killings that can only be justiﬁed by extending the scope of the international law of armed conﬂict that was never intended to cover “sporadic acts of violence”.

1. Active De Facto Extradition and the Fugitive’s Rights in the Requesting State 1.1 Introduction The Savarkar Arbitration case11 involved an fugitive being extradited from England to India under the then Fugitive Offenders Act 1881 who jumped ship and swam ashore in Marseilles. Believing that he was a member of the crew, a French policeman arrested him and handed him over to the British police ofﬁcer who was accompanying him back to India. Subsequently, the French authorities discovered the true situation and sought reparation for the alleged violation of territorial sovereignty by way of the return of Savarkar. The Permanent Court of Arbitration held that on the facts it had been an honest mistake by all concerned and that the British ofﬁcers had acted in good faith. However, implicit in the judgment is the view that if the fugitive’s return had been obtained by force or subterfuge, then it would have been possible for France to demand his return because of the violation of sovereignty.12 No mention was made of any independent right for the fugitive to challenge this irregular surrender. McNair13 reports the Lawler incident in 1860, where a prisoner on Gibraltar escaped to Spain. He was recaptured by a British warder and taken back to Gibraltar; at no time was Spanish permission obtained for any of these actions. British Law Ofﬁcers at the time thought that if Spain had requested reparation for the violation of territorial sovereignty, then the British Government would have had to have restored the status quo ante, including, possibly, the return of the prisoner to Spanish territory.14 Again, though, no mention was made of any violation of the individual’s rights.15 The leading abduction case must be that of Adolf Eichmann.16 Eichmann was taken from Argentina to Israel in 1960. The abduction patently violated Argentinean

11 12 13 14

15 16

Scott, Hague Court Reports p. 275 (1911). Supra n11, at p. 279. INTERNATIONAL LAW OPINIONS, vol. 1, p. 78 (1956). Speciﬁc restitution, envisaged in Savarkar and Lawler, was applied as a sanction in the Temple Case (Cambodia v Thailand), [1962] ICJ Rep p. 6. The case concerned stolen religious artefacts, however. Cf. Bozano, infra n211. The Eichmann trial in Israel is to be found at 36 INT’L L REP.5 (1961). For a discussion of the

Irregular Responses to International Crimes

309

sovereignty. If the abduction was by Israeli agents, then State responsibility arose for that infringement. If, as Israel maintained throughout, it was by private individuals, then no State responsibility arose. However, even if State responsibility does arise, it may be possible for it to be settled either by the offending State surrendering the kidnappers to the offended State for trial17 or by ﬁnancial compensation. Furthermore, from the point of view of the sanctity of the extradition process, Argentina could also have claimed the return of Eichmann.18 It did not. The parties eventually agreed to defer to the approval of the trial by the United Nations Security Council19 and treated the matter as closed.20 That settled the matter as far as Argentina was concerned, but could Eichmann use the abduction as a defence before the Israeli court on the basis that his human rights had been violated? At the trial for his war crimes committed in Poland during World War II, he alleged that the court had no jurisdiction because, in taking him, Israel had violated the fundamental international rights of Argentina. The court held Eichmann had no locus standi to raise this point and that, regardless, under Anglo-American precedent at that time, the manner in which a person comes before a court is irrelevant to the trial. He further argued that the abduction violated his asylum in Argentina. The court summarily refuted this contention by stating that the grant of asylum is at the discretion of the State of refuge and that Argentina had never granted it.21 The result, that regardless of the method by which the fugitive is brought before the court, his trial will be valid, seems prejudicial to good international relations and world public order. To that end, there is good reason to adopt the Harvard Draft Convention on Extradition22 on this point.

17

18

19 20

21 22

kidnap see Lasok, The Eichmann Case, 23 MOD.L REV.507 (1960); Cardozo, When Extradition Fails is Abduction the Solution, 55 AM.J INT’L L 127 (1960). See also the Vanunu Affair, The Times, p. 3, 12 OCT 1986; p. 2, 13 OCT 1986; p. 1, 21 OCT 1986; p. 14, 26 OCT 1986; p. 20, 10 NOV 1986; p. 1, 23 DEC 1986; p. 7, 6 MAR 1987. The Guardian p. 13, 16 APR 2004; p. 9, 17 APR 2004; pp. 2 and 3, 21 APR 2004 (G2); p. 16, 21 APR 2004; p. 4, 22 APR 2004; p. 23, 25 JUN 2004; p. 11, 26 JUL 2004; p. 27, JUL 2004; p. 22, 12 NOV 2004; pp. 2–4, 15 NOV 2004 (G2); p. 15, 18 MAR 2005; p. 17, 20 APR 2005. See Kear v Hilton, 699 F.2d 181 (1983). Italy has requested the United States to surrender seven CIA agents who allegedly kidnapped an Egyptian cleric who was then, according to the Italians, the object of ‘extraordinary rendition’ to Egypt where he was tortured – BBC News website 4619377.stm, 2005/06/24 16:01:49; 4637509.stm, 2005/06/30 12:25:15; 4716333.stm, 2005/07/25 21:51:05; 4555660.stm, 2005/12/23 16:59:59; and, The Guardian p. 21, 25 JUN 2005; p. 16, 1 JUL 2005; p. 17, 2 JUL 2005. See also, Germany’s investigation of a report that a German national was kidnapped by the United States and made the object of ‘extraordinary rendition’ to Afghanistan – The Guardian p. 17, 15 JAN 2005. Preuss, Kidnapping of Fugitives from Justice on Foreign Territory, 29 AM.J INT’L L 502 (1935). See also the Vincenti Affair, vol.1, HACKWORTH’S DIGEST OF INTERNATIONAL LAW at p. 624 (1920). Resolution of 24th June 1960, 15 UNSCOR SPECIAL SUPP. (JAN-DEC 1960) Doc.S/4349. Attorney-General of the Government of Israel v Adolf Eichmann, supra n16, at 59 (Dist.Ct. Jerusalem). Supra n16, at 56–76 and 306–98 (S.Ct.Israel). 29 AM.J INT’L L (SUPP.) 623 (1935).

310

Chapter 6 Art 16: Apprehension in Violation of International Law. In exercising jurisdiction under this convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention, without ﬁrst obtaining the consent of the State or States whose rights have been violated by such measures.

Even under this provision, the Eichmann trial would have been valid, for Argentina consented to the trial. However, it would have forced Israel to seek permission. As it was, Israel merely relied on Anglo-American precedent which ignored international public order, violations of the fugitive’s human rights and State sovereignty.

1.2 The Common Law Tradition Modern authority on active de facto extradition, especially international abduction, comes from the U.S.A. An abduction to the United States may be in breach of the U.S. Bill of Rights as well as international law. The former is only speciﬁcally relevant to the U.S.A., but in other countries the same rights may well be guaranteed by a regional human rights convention, such as the European Convention on Human Rights23 or the American Convention on Human Rights or the African Charter on Human and Peoples Rights.24 The United States takes the view that if the fugitive is before a court that has jurisdiction over his alleged offence, then the manner in which he arrived there is irrelevant except, apparently, in one very specialised case. The usual position is laid down in a doctrine known as the Ker-Frisbie rule. This rule is based on two decisions of the U.S. Supreme Court, Ker v Illinois25 and Frisbie v Collins.26 In the former case, Ker was living in Peru. An indictment was issued against him by a grand jury in Illinois for larceny and embezzlement. The President invoked the then current extradition treaty between the United States and Peru and issued a warrant to a Pinkerton agent to take custody of Ker and return him. Unfortunately, by the time the Pinkerton agent reached Lima, Chilean forces had taken control of the town. An expeditious extradition was impossible, so the Pinkerton agent abducted Ker and took him back to the U.S.A. In the U.S.A., an Illinois court convicted him. He appealed to the Supreme Court contending that his right to asylum in Peru had been violated, that the U.S.-Peruvian extradition treaty27 had been ignored and that the ‘due process’ clause of the Fourteenth Amendment to the Constitution had been infringed, such that the Illinois court had no jurisdiction over him. Miller J, for the

23

24 25 26 27

European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (1950). See, generally, Chapter Four: ACHR, 9 INT.LEG.MAT.673; ACHPR, 21 INT.LEG.MAT.58. 119 US 436 (1886). 342 US 519 (1952). 61 B.F.S.P.1302 (1870).

Irregular Responses to International Crimes

311

Court, held that Ker had no right to asylum; that could only be granted at the discretion of the Peruvian government. Moreover, the extradition treaty between the two States did not guarantee the fugitive asylum.28 As regards the ‘due process’ argument, the Fourteenth Amendment was satisﬁed if the procedural rules for arrest and trials were met.29 As to whether forcible abduction per se vitiated the court’s right to hear cases, this was held to be within the province of the State courts and so the Supreme Court was incompetent to review it. The Court, therefore, decided not to pass judgment on that point.30 Surely, the violation of another sovereign State’s territory is such a gross infringement of international law that, for the preservation of good relations between States, an abducted fugitive ought not to be tried, at least not without the express permission of the violated State. A valid analogy can be made with the principle of specialty in extradition treaties which prevents trial of offences for which the fugitive was not surrendered.31 In the instant case, it was held relevant that Peru lodged no protest over the infringement of its territorial sovereignty by the United States government’s Pinkerton agent – it might be suggested, however, that Peru was probably more concerned with a similar, but much larger, infringement by the Chilean army. The Supreme Court acknowledged, though, that Peru could request the extradition of the Pinkerton agent for kidnapping and that Ker could sue him for assault and false imprisonment. However, a rider had to be attached to those principles following the Jaffe incident.32 Jaffe was kidnapped from Canada by two private citizens of the United States for failure to answer his bail in Florida. In Kear v Hilton,33 the U.S. courts extradited his kidnappers back to Canada to face trial for abduction, in line with the remedies set out in Ker.34 In Jaffe v Miller,35 the High Court of Justice of Ontario, 28 29

30

31

32

33 34

35

Supra n25, at 442. Supra n25, at 440. The Frisbie case, supra n26, involved no points of international law because the abduction occurred between two States of the U.S.A. Nevertheless, it conﬁrmed that U.S. courts will not have regard to the manner in which the fugitive is brought before the courts. Supra n25, at 444. Whether there was, in fact, a violation of international law in this case was doubted by Morgenstern in Jurisdiction in Seizures Effected in Violation of International Law, 29 BRIT.YB.INT’L L 265 at p. 269 (1952). United States v Rauscher, 119 US 407 (1886); Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of U.S. v Rauscher, 31 VA.J INT’L L 71 (1993). Fairman, Ker v Illinois Revisited 47 AM.J INT’L L 678 (1953). Kear v Hilton, supra n17; Jaffe v Boyles, 616 F.Supp 1371 (1985); Jaffe v Smith, 825 F.2d 304 (1987); Buser, The Jaffe Case and the Use of International Kidnapping as an Alternative to Extradition, 14 GA.J INT’L & COMP.L 357 (1984); Jaffe v Miller, (1991) 73 DLR (4th) 420. Supra n17. As previously stated, see Italy’s request to the United States to surrender seven CIA agents who allegedly kidnapped an Egyptian cleric – BBC News website 4619377.stm, 2005/06/24 16:01:49; 4637509.stm, 2005/06/30 12:25:15; 4716333.stm, 2005/07/25 21:51:05; and, The Guardian p. 21, 25 JUN 2005; p. 16, 1 JUL 2005; p. 17, 2 JUL 2005. See also, Germany’s investigation of a report that a German national was kidnapped by United States ofﬁcials – The Guardian p. 17, 15 JAN 2005. Supra n32, (1991) at 424–25.

312

Chapter 6

on the other hand, held that Florida State ofﬁcials involved in planning Jaffe’s kidnap from Canada could claim State immunity when sued by Jaffe for the damage he suffered as a consequence of that conspiracy. Whether State immunity should be available for such a gross violation of State sovereignty culminating in a criminal act is open to question. Jaffe v Boyles36 reasserted the position that the extradition treaty sets out the obligations of the State parties alone; it gave rise to no private right of action for Jaffe. However, in Jaffe v Smith the Court of Appeals held, obiter, that a fugitive might be able to object to his trial if he can prove governmental involvement in the abduction amounting to a violation of the extradition treaty.37 Absent governmental action, either through a direct violation of the treaty or through circumvention of the treaty, a fugitive has no basis upon which to challenge his/her return to the prosecuting jurisdiction. . . . Jaffe’s removal from Canada can constitute a treaty violation only if governmental actors were involved, that is if the government conducted or condoned his removal by means other than those outlined in the [extradition] Treaty.

While it was always acknowledged that an ofﬁcial kidnapping would be a violation of territorial sovereignty giving rise to State responsibility, Jaffe v Smith may well have been conferring a new right on the fugitive. The Jaffe line of decisions left unresolved several matters to do with the abduction of transnational fugitive offenders. It would, in fact, be more accurate to state that Jaffe v Smith was afﬁrming a view previously asserted in United States v Toscanino,38 but which had been severely criticised in subsequent cases, such that Jaffe v Smith was something of a ‘Lazarine reviviﬁcation by proxy’. In Toscanino, the Court of Appeals for the Second Circuit had considered whether abduction was a breach of international law and whether such breach should divest the courts of jurisdictional competence. Unlike Ker, Frisbie39 and, for that matter, Jaffe v Smith, Toscanino had gone beyond whether the violation of the procedures in the extradition treaty ought to vitiate jurisdiction and considered whether the violation of international law per se was sufﬁcient to divest the courts of competence. Although now again left languishing as one of those many cases that might be applicable in extreme circumstances following subsequent Supreme Court authority which is considered below, Toscanino, and for that matter Jaffe v Smith, raised issues that need to be considered if a true analysis of international abduction is to be made in full – both cases raise issues which are unaddressed by simply ignoring the means by which the accused’s presence in court is obtained. 36 37 38 39

Supra n32. Supra n32, at 307–08. 500 F.2d 267 (1974); not cited in Jaffe v Smith. See also United States v Crews 455 US 467 (1980); Stone v Powell, 428 US 465 (1976); and Gerstein v Pugh 420 US 103 (1975).

Irregular Responses to International Crimes

313

Toscanino concerned an Italian national living in Uruguay, from where he was exporting narcotics into the United States. Toscanino alleged that he was kidnapped by Uruguayan police in the pay of the United States government, driven to the border with Brazil and there handed over to the police of that country, also in the pay of the U.S.A. The Brazilian police were alleged to have held him for seventeen days, during which time he was, according to his own evidence, tortured and interrogated incessantly. He also claimed that a member of the United States Department of Justice, Bureau of Narcotic and Dangerous Drugs, was present. Finally, he told the court that he was drugged and place on board a plane to the U.S.A. He was convicted there, and appealed to the District Court which afﬁrmed the lower court’s authority to try the case under the Ker-Frisbie rule. He then made a further appeal to the Court of Appeals for the Second Circuit. That court based its decision on the facts as set out above, but directed a hearing be held to ascertain the extent of United States involvement in the case. At that subsequent hearing, Toscanino failed to prove the presence of any members of the Bureau of Narcotic and Dangerous Drugs or any directions by them to the Uruguayan or Brazilian police.40 The Court of Appeals’ judgment referred to the fact that the due process clause has been greatly expanded since the Ker-Frisbie rule was ﬁrst promulgated,41 such that the rule could no longer be binding.42 Accordingly, we view due process as now requiring a court to divest itself or jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.43

The court felt it relevant that the method of acquiring Toscanino was unnecessary, for extradition was possible under the United States-Uruguay treaty.44 Regardless of the constitutional issues, which only apply directly to abductions by or on behalf of the United States government, the court also reviewed breaches of two treaties, to which both the U.S.A. and Uruguay were parties, which guaranteed their territorial sovereignty.45 The court rejected the contention that abduction in open deﬁance of an operational and applicable extradition treaty would render the courts incompetent to try the case. This opinion was subsequently conﬁrmed by United States v Cordero,46 in which the court speciﬁcally held that

40 41

42 43 44 45 46

United States v Toscanino, 398 F.Supp 916 (1975). Eg. Mapp v Ohio, 367 US 643 (1961); Miranda v Arizona, 384 US 436 (1966); United States v Archer, 486 F.2d 670, 674–75 (1973). Cf. Cases cited supra n39. Supra n38, at 275. Supra n38, at 276. Supra n38, at 276–79. 668 F.2d 32 (1981).

314

Chapter 6

extradition treaties are for the sole beneﬁt of the signatory States, although that has to be understood in the light of the judgment in Jaffe v Smith.47 However, the court in Toscanino referred instead to the United Nations Charter48 and the Charter of the Organisation of American States.49 Both treaties contain clauses recognising the territorial sovereignty of the other parties, and while the latter is only relevant on the American continent, the former applies to most countries throughout the world. Therefore, following the precedent laid down in Cook v United States,50 the Court of Appeals in Toscanino decided that if the abduction violated a treaty obligation, the Courts were not competent to hear the case. If abductions are not going to be outlawed upon an extradition treaty being ignored, as Article 16 of the Harvard Draft Convention on Extradition51 would require, the Toscanino ruling with respect to Article 2(4) of the United Nations Charter would present a serious obstacle to this manifestly illegal practice. That abductions breach this provision is apparent from the Eichmann resolution given by the Security Council.52 In Europe, the breach of the Charter of the Organisation of American States can be equated with a violation of the Statute of the Council of Europe,53 while Article 3 of the Charter of the Organisation of African Unity is of similar effect.54 Unfortunately, Toscanino, although it is still good law, it has been consistently distinguished since it was decided and not one case expressly afﬁrms it. It has been restricted to its precise facts as alleged. The Second Circuit itself avoided the ruling in United States, ex rel.Lujan v Gengler.55 With two of the judges from the Toscanino case sitting on the bench in Lujan, the Court of Appeals distinguished its former decision on two grounds. First, that there was no torture, terror or custodial interrogation, and, secondly, because, in order for the treaty violation to oust the court’s jurisdiction, the offended State or States must have made a complaint; the accused did not allege this in the instant case.56 This view severely limited the ratio of Toscanino with respect to its analysis of treaty violations and it would have been preferable for the court in Lujan to have required the requested State’s express consent to the trial of the abductee in the U.S.A., rather than mere silence from the

47 48 49 50 51 52 53 54 55

56

Supra n32. Signed at San Francisco, June 26th 1945. UKTS 67 (1946) Cmd 7015. 119 UNTS 3. 288 US 102 at 121–22 (1933). Supra n22. Supra n19. ETS 1 (1949). 2 INT.LEG.MAT.766 (1963). 510 F.2d 62 (1975); see also United States v Lira, 515 F.2d 68 (1975), (cf. the opinion of Oakes CJ and Sarosdy, Case Note, 54 TEX L REV.1439 (1976)); In the Matter of the Extradition of Atta, Ahmad v Wigen 706 F.Supp 1032 (1989), 726 F.Supp 389 at 409–20 (1989), rev’d on this point 910 F.2d 1063 at 1066–67 (1990); and United States v Orsini, 424 F.Supp 229 (1976), aff’d 559 F.2d 1206 (1977). Supra n55, at 68.

Irregular Responses to International Crimes

315

offended State. However, this presumption in favour of the prosecuting State, merely reﬂects the view that treaties and customary international law are matters for States not individuals.57 Outside the Second Circuit Toscanino fared even worse. The Fifth Circuit rejected it outright,58 while the other Circuits have reserved their opinion.59 The case of United States v Noriega60 arose out of the United States’ military action in Panama in December 1989, which resulted in Noriega’s surrender to United States troops on 3 January 1990. In the Court of Appeals, the court decided, inter alia,61 that the fact that he had been brought back following a military invasion of Panama during which signiﬁcant numbers of Panamanian civilians were injured and lost property did not mean that the manner in which he was brought before the district court was so unconscionable as to constitute a violation of substantive due process [and, that in the alternative,] the district court should exercise its supervisory power to decline jurisdiction.62

The court followed the Ker-Frisbie63 doctrine, declined to follow Toscanino64 on the ground that the injuries were to third parties, not the accused, and held the District Court to have been competent. It would seem, therefore, that bearing in mind the circumstances of Noriega’s ‘arrest’, treatment of the fugitive by United States ofﬁcials would have to be outrageous if it is to be “so unconscionable as to constitute a violation of substantive due process” and any discretion to decline jurisdiction would be contemplated. In Matta-Ballesteros v Henman,65 the Seventh Circuit declined to follow Toscanino because the Supreme Court had twice reafﬁrmed the Ker-Frisbie rule since the Toscanino judgment; however, this reasoning missed the point that the Supreme Court, unlike the Second Circuit Court of Appeals, had still to consider whether abduction from a foreign State should

57

58 59

60

61

62 63 64 65

Cordero, supra n46, and United States v Williams, 617 F.2d 1063 (1980). Cf. Ker, supra n25, at 444. United States v Herrera, 504 F.2d 859 (1974). United States v Lovato, 520 F.2d 1270 at 1271 (1975, CA9); United States v Valot, 625 F.2d 308 (1980); Darby, Yamanis & Calise, 744 F.2d 1508 (1984, CA11). In Darby the court questioned the whole basis of Toscanino, without rejecting it though, quoting from Gerstein v Pugh, supra n39, at 119, where the Supreme Court refused to retreat from the established rules that illegal arrest or detention does not void a subsequent conviction. 746 F.Supp 1506 (1990); 808 F.Supp 791 (1992); 117 F.3d 1206 (1997); cert.den 523 US 1060 (1998). Apart from some evidential issues, Noriega also challenged his conviction on the basis of head of State immunity – rejected, supra n60, at 1212 (1997). Supra n60, at 1214; see generally, 1213–15 (1997). Supra nn25 and 26. Supra n38. 895 F.2d 255; 896 F.2d 255 (1990).

316

Chapter 6

vitiate jurisdiction because of the violation of international law occasioned in apprehending the fugitive. Nevertheless, unless there are “grossly cruel and unusual barbarities”, then Toscanino is not going to be followed.66 In the related cases of United States of America v Humberto Alvarez-Machain67 and United States of America v Rene Martin Verdugo-Urquidez,68 the Supreme Court reasserted the Ker-Frisbie doctrine. Both Machain and Verdugo had been abducted from Mexico in relation to an investigation into the torture and murder of a United States DEA ofﬁcial and had been brought to the U.S.A. There was an extradition treaty in force between the U.S. and Mexico.69 The Court of Appeals for the Ninth Circuit held that if the Mexican Government had protested about the kidnapping of each man, then jurisdiction was vitiated and the appropriate reparation was repatriation of the two accuseds to Mexico. An accused might successfully plead a breach of an international extradition agreement where the violated State made a protest. Such a stance by the Court of Appeals reﬂected the fact that State sovereignty had been breached by the taking of a person from within a State where he has committed no offence and the proper remedy was to restore the status quo ante, incidentally correcting the infringement of abductee’s human rights – it also

66

67 68 69

Lovato, supra n59, at 1271. Even where prison conditions are disgusting and degrading, this will not sufﬁce; Cordero, supra n46. The due process and other constitutional issues raise one other relevant question, that is to what extent and on whom does the U.S. Bill of Rights confer protection outside the U.S.A. Within the U.S.A. aliens and citizens enjoy similar protection [Graham v Richardson 403 US 365 (1971); Foley v Connelie, 435 US 291, (1978)]. It has been argued by Stephan [Constitutional Limits on International Rendition of Criminal Suspects, 20 VA.J INT’L L 777, (1980)], however, that outside the U.S.A. the constitutional protections only extend to United States’ citizens, permanent resident aliens and foreign nationals possessing ‘substantial’ ties with the United States. Apart from the difﬁculty in assessing who possesses ‘substantial’ ties, the test is open to abuse; information obtained in violation of the Constitution from someone not protected would be inadmissible if the infringement took place in the U.S.A., whereas, for example, it would be good evidence if obtained a mile beyond the Mexican border. Furthermore, Stephan’s argument ignores the fact that United States ofﬁcials only obtain any of the powers they do have through the Constitution. If they are using Constitutional powers, surely Constitutional obligations as set out in the Bill of Rights ought to apply, too. As Saltzburg [The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 VA.J INT’L L 741 (1980)] explains. The government of the United States has only the powers entrusted to it by the Constitution. Whenever and wherever it acts it relies on the Constitution as the source of its powers. Whenever it acts, it must, therefore, accept the limits on its powers imposed by the same Constitution that provides the afﬁrmative grant of power [Kinsella v United States, ex rel Singleton, 361 US 234 (1960); Mitchell v Harmony, 54 US (13 HOW.) 115 (1852); Stockwell v United States, 405 F.2d 738 at 751, Browning J dissenting, cert.den 395 US 960 (1969)]. Thus, the Bill of Rights controls the activities of the United States law enforcement ofﬁcers wherever they occur. See also Pregent, Presidential Authority to Displace Customary International Law, 129 MIL.L REV.77 (1990), and Evans, International Kidnapping in a Violent World: where the United States Ought to Draw the Line, 137 MIL.L REV.187 (1992) . 946 F.2d 1466 (1991). See also, 745 F.Supp. 599 (1990). 939 F.2d 1341 (1991). Given that both men were Mexican nationals, though, there was no real possibility that Mexico would extradite them to the U.S.A. if a request had been made.

Irregular Responses to International Crimes

317

recognises that extradition is the accepted method of international rendition and that the use of an alternative where extradition is available ignores the procedural guarantees it provides. However, the United States Supreme Court in June 1992 reversed the Court of Appeals’ decisions in Machain and Verdugo by a six to three majority,70 Rehnquist CJ giving the prevailing judgment of the Court. The Supreme Court held that the decision in Ker governed the jurisdiction of trial courts – if the accused is before the court, then the means by which his presence was acquired is irrelevant to the standing of those proceedings. It is almost as if extradition laws and treaties are a subset of the Ker rule. The majority’s reasoning, however, lacks persuasiveness. Rehnquist CJ starts by rejecting any claim that the U.S.-Mexican treaty expressly prohibits forcible abduction, as though two States negotiating an international agreement would make provision for the possible violation by one of the parties of the territorial sovereignty of the other, contrary to customary international law and antithetic to the very instrument under discussion. The judgment even refers to the 1906 Martinez incident,71 ignoring the fact that both Ker and Martinez were cases of private individuals abducting fugitives, rather than federal agents as in Machain.72 Nevertheless, in line with Machain, the Court of Appeals in Noriega held that the fact that there was a U.S.-Panama Extradition Treaty did not mean that the presence of the fugitive before a United States court through means other than extradition rendered the court incompetent.73 Furthermore, the majority in Machain went on to reject the idea that customary international law might give rise to an implied provision in the extradition treaty vitiating jurisdiction where the fugitive had been kidnapped by State ofﬁcials from another sovereign State. In a broad sense, most international agreements have the common purpose of safeguarding the sovereignty of signatory nations, in that they seek to further peaceful relations between nations. This, however, does not mean that the violation of any principle of international law constitutes a violation of this particular treaty.74

In fact, the Supreme Court ducked the issue and held that the return of a fugitive who had been abducted and where the violated State protested, as Mexico had done, was a matter not for the courts, but rather the Executive which had instigated and perpetrated the breach of international law in the ﬁrst place.

70 71 72 73 74

United States v Alvarez-Machain, 504 US 655 (1995). Supra n70, at n. 11 at 666. See dissent at 682 and n. 30 of the judgment at 685; supra n70. Supra n60, at 1212–13 (1997). See also, United States v Best 304 F.3d 308 at 312–15 (2002). Supra n70, at n. 14 of the judgment at 668.

318

Chapter 6

The dissenting opinion of Stevens J75 in Machain76 is instructive and shows that while the individual case may have been lost, the arguments in favour of international abduction are not legally watertight, nor, for that matter, practically sound. The dissent adopts the common-sense position that where two States have concluded an international agreement for the return of fugitive offenders, then no such person should return to face trial by the unilateral action of one party. An extradition treaty must be exclusive, otherwise the inter-State procedural and the fugitive’s human rights guarantees are “little more than verbiage”.77 Stevens J went on to show that it was the accepted view of leading international law commentators that if the violated State protested, then the proceedings to prosecute the abductee ought not to take place.78 The crimes with which Machain was charged were serious and deserving of punishment, but it did not justify United States ofﬁcials snatching him from Mexico. It is ironic that the United States has attempted to justify its unilateral action based on the kidnapping, torture, and murder of a federal agent by authorizing the kidnapping of respondent, for which the American law enforcement agents who participated have now been charged by Mexico. This goes to my earlier point that extradition treaties promote harmonious relations by providing for the orderly surrender of a person by one State to another, and without such treaties, resort to force often followed.79

One immediate consequence of the Machain decision was that Mexico withdrew its co-operation with the United States to counter drug trafﬁcking until the latter agreed to revise the relevant legal instruments.80 However, it is the dissent by Brandeis J in Olmstead v United States81 that best generally describes why human rights are better protected if, inter alia, extradition treaties are utilised rather than kidnap. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious.

75 76 77 78

79 80

81

Joined by Blackmun and O’Connor JJ. Supra n70, at 670. Supra n70, at 673. See LAUTERPACHT, OPPENHEIM’S INTERNATIONAL LAW, vol. 1, at p. 295 (8th ed.; 1955). Henkin, A Decent Respect to the Opinions of Mankind, 25 JOHN MARSHALL LJ 215 at p. 231 (1992). Abbell, The Need for U.S. Legislation to Curb State-Sponsored Kidnapping, in ATKINS, THE ALLEGED TRANSNATIONAL CRIMINAL (1995), at pp. 87–93; cf. Woltring and Greig, State-Sponsored Kidnapping of Fugitives: An Alternative to Extradition, at pp. 115–25. AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW OF FOREIGN RELATIONS OF THE UNITED STATES §432 and Comment c. (3d, 1986). Supra n70, at n. 12 at 675. See The Guardian p. 8, 17 JUN 1992, and p. 11, 19 JUN 1992. Ironically, on remand to the trial court in California, the case against Alvarez-Machain failed for lack of evidence. 277 US 438 at 485 (1928), cited in Alvarez-Machain, supra n70, at n. 33 at 687.

Irregular Responses to International Crimes

319

If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justiﬁes the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.82

On another tack, however, academics have also questioned whether it is appropriate for United States judges to inquire into the foreign policy of the United States; their comments are equally relevant to cases in any country. Foreign policy, it is suggested, is a question for the executive, not the judiciary: judges may well harm international relations by their decisions. In as much as abduction can be viewed as foreign policy, however, it must harm international relations and so disapproval by any branch of government is to be welcomed. This same argument can be used in support of the discredited theory that violations of Article 2(4) of the United Nations Charter per se ought to vitiate proceedings. The courts should not hear the case and thereby implicitly condone a breach of such a fundamental treaty entered into by the governments of most States in the world. Nevertheless, although one of many issues in the case, international abduction was sanctioned in United States v Noriega.83 A clearer example of actions challenging Article 2(4) of the United Nations Charter it would be harder to ﬁnd. In the ﬁrst District Court hearing, Noriega tried to rely on Article 2(4) of the Charter, but it was held that individuals in court could only rely on international treaties if the affected State complained or if the treaty was self-executing – neither avenue was available to Noriega.84 In conclusion on the United States law, however, the majority’s decision in Machain may, despite Noriega, which can be explained away as sui generis and as ‘tidying up’ earlier problems,85 hasten the demise of State-sponsored kidnaps of alleged international criminals, for it has brought to the fore this attempt to authorize the “manifestly illegal”.86 In the past, the United Kingdom,87 like the United States, was treated as considering the mode by which the fugitive arrived before the court as irrelevant, as well.

82

83 84 85 86

87

Alvarez-Machain brought a claim under the Alien Tort Claims Act regarding his abduction, but it was rejected by the Supreme Court – Sosa v Alvarez-Machain 542 U.S. 692 (2004). See also, Khaled el-Masri’s claim regarding his alleged abduction from Macedonia by the CIA and subsequent torture or other mistreatment in Afghanistan – BBC News website 4504292.stm, 2005/12/06 18:20:35. Supra n60. Supra n60, at 1532–34 (1990). He did not continue with this argument in subsequent hearings. The invasion of Panama was in 1989 – the Court of Appeals was only seized of the matter in 1997. The U.S. Department of Justice held that Machain should not be seen as a green light for international kidnapping of fugitives. Moreover, the Inter-American Juridical Committee gave a legal opinion holding that the kidnap was a serious violation of public international law – 32 INT.LEG.MAT.277 (1993). See O’Higgins, Unlawful Seizure and Irregular Extradition, 36 BRIT.YB.INT’L L 279 (1960).

320

Chapter 6

The authorities cited in support of this argument were Ex p.Susannah Scott88 and Ex p.Elliott.89 Scott was wanted for perjury and was ‘arrested’ by an English police ofﬁcer in Brussels and returned to England. In England she was brought before Tenterden LCJ. He considered that the question the court had to answer was whether a person charged with a crime in the United Kingdom was amenable to the jurisdiction of the courts regardless of the circumstances under which she was apprehended. He decided the court could not inquire into the manner in which the fugitive was brought to the United Kingdom. Yet his Lordship’s reasoning completely disregards whether there was a breach of international law at all. He is concerned solely with any infringements of the domestic law of the United Kingdom and Belgium. If the act complained of were done against the law of a foreign country, that country might have vindicated its own law. If it gave her a right of action, she may sue upon it.90

Thus, the case cannot be authority for the proposition that a breach of international law will not divest English courts of jurisdiction, since this matter was not considered. In R v O/C Depot Battalion, RASC, Colchester, ex p. Elliot,91 the defendant was a deserter from the army. He had been ‘arrested’ in Antwerp by British and Belgian police and held in custody there for two days. He was returned to England via an army base in West Germany, whereupon he applied for habeas corpus. Goddard LCJ held it was no answer to the apparent lawfulness of his detention for the defendant to allege that he was arrested abroad contrary to the laws of that State. The Lord Chief Justice was of the opinion that an action might lie against the arresting ofﬁcers, but that the courts could still try the fugitive. Yet again, the question of whether an ‘arrest’92 by a British policeman in a foreign country in breach of that State’s sovereignty and, therefore, in violation of international law would oust the competence of the court was not considered. Unlike Ex p.Scott, this ‘arrest’ was carried out with the aid of Belgian police, but since he was then taken to England in complete disregard of the processes of extradition law, the treaty obligations must have been ignored or even violated. With all due respect to the judges involved, the decisions evince inadequate and incomplete reasoning with regard to all the questions raised.

88 89 90 91 92

109 ER 166 (1829). [1949] 1 All ER 373. Supra n88, at 167. Supra n89. Outside the territorial jurisdiction of England and Wales, a British policeman has no authority at all. Thus, any detention overseas cannot be a lawful arrest. However, see the discussion on hot pursuit below.

Irregular Responses to International Crimes

321

Before 1993, only one case had ever considered whether a breach of international law would vitiate jurisdiction, and, even then, it was only obiter. R v Garrett ex p.Sharf et al.93 involved the arrest of four Russians on board a Danish ship which had been brought into an English harbour to search for contraband. The Russians were charged under Reg.45(b), Defence of the Realm Regulations Consolidated 1916, with having knowingly made false declarations in order to obtain passports. The passports were issued by the Russian consulate in London and the four were on their way to Denmark to catch a ship to the U.S.A. Following their arrest, no complaint was received from either the Russian or Danish governments. At their trial at Bow Street Police Court, the four alleged the magistrate had no jurisdiction because their arrest took place on the high seas and that the English police authorities lacked jurisdiction outside territorial waters. On appeal by way of case stated, Viscount Reading CJ rejected their argument by saying the arrest actually took place in Kirkwall harbour. However, he went on to say, obiter, that an arrest on the high seas would raise a question requiring careful consideration.94 Furthermore, he averted to the issue again at the end of his judgment, where he said it may be possible for some defendants to raise the issue without the intervention of the State whose international rights had been violated – in this case, Denmark. However, because, Viscount Reading had held the arrest took place in the United Kingdom, the instant case had not give rise to such a problem.95 In conclusion, none of the early English cases had ever dealt head-on with the question of jurisdiction in relation to a violation of international law. The obiter dictum of Viscount Reading CJ is all that existed and, since it preceded Ex p.Elliott, one could not say with certainty that it would be followed if the problem ever presented itself again. However, from the beginning of the 1980s, the English courts had considered the possibility of refusing jurisdiction, not because of any violation of international law, but to prevent abuse of their own process.96 In R v Bow Street Magistrates, ex p.Mackeson,97 the Court of Appeal had to decide whether to divest itself of jurisdiction where the accused had been returned by way of deportation rather than extradition.98 He had been arrested in, as it then was, Rhodesia, with which the United Kingdom had no extradition relations. However, he was eventually deported by the ofﬁcials of the newly independent Zimbabwe, to which the Fugitive Offenders Act 188199 and related legislation did apply. It was alleged that 93 94 95 96

97

98 99

(1917), 86 LJ(KB) 894; [1917] 2 KB 99. Supra n93, at 898. Supra n93, at 900. See Warbrick, Irregular Extradition, [1983] PUB.LAW 269, and Kodwo Bentil, When Extradition Masquerades as Deportation, 127 SOL.JO.604 (1983). Cf. DPP v Sang, [1980] AC 402. (1981), 75 Cr.App.R 24. See also United States v Lira, 515 F.2d 68 (1975), where the fugitive was expelled from Chile because extradition was impossible since he was a Chilean national. The principle would apply to an abduction case, too. See Ex p.Elliott, supra n89. The Rhodesian government was not party to the 1966 SCHEME RELATING TO THE RENDITION OF FUGITIVE OFFENDERS WITHIN THE COMMONWEALTH, Cmnd 3008, so the old

322

Chapter 6

British police ofﬁcers instigated and played a large part in obtaining Mackeson’s deportation. The question which arose, therefore, was whether jurisdiction should not be accepted because the appropriate extradition law had been deliberately avoided. Lord Lane CJ, having regard to cases from New Zealand100 and Australia,101 decided to exercise the court’s discretion and declined jurisdiction. [The Court] rejected any suggestion that [extradition] could be put in motion by any constable who thought he knew the law of a foreign country, and thought it desirable that a person whom he thought he suspected of having offended against that law should be surrendered to that country to be punished.102

After Mackeson it seemed that where extradition was deliberately avoided, or even possibly, where it was not used when available, then the courts would be willing to exercise their discretion not to hear the case. This optimistic view was soon dispelled in relation to the latter scenario in Healy.103 Here the defendant, while on bail, went to the United States using a false passport. He was arrested in Los Angeles and was served with a deportation order. At the hearing before the Immigration Tribunal two British police ofﬁcers gave evidence of the charges the defendant would face on return to the United Kingdom. Following the initial hearing, the two policemen returned to the United Kingdom and, after several further hearings, the defendant was deported from the United States and arrived back in London. After being indicted, he applied for judicial review. The Divisional Court distinguished Mackeson on the basis that the British police in Healy did not inﬂuence the U.S. inquiries in any improper way. It was perfectly permissible to provide immigration authorities with information about how the accused entered the country and his previous crimes in the United Kingdom, whereas the police in Mackeson had suggested deportation and actively urged on the proceedings according to the evidence. There was no such collusion in Healy.104 Following Healy, therefore, where extradition had been deliberately avoided at the instigation of British authorities, the courts could exercise their discretion, but not otherwise. This interpretation of Mackeson and Healy was reconsidered in Driver,105 which dealt with the return of the accused from Turkey. No-one denied that British and Turkish authorities had worked together to return Driver to the United Kingdom. It was held, though, that Mackeson was, in fact, inapplicable

100 101 102

103 104 105

imperial statute of 1881 was probably still applicable. See Lord Lane CJ, supra n97, at 33. If no extradition arrangement is in force, then the Mackeson argument is irrelevant. R v Hartley, [1978] 2 NZLR 199. Brown v Lizars, (1905), 2 CLR 837. Ex p.Mackeson, supra n97, at 33, citing Hartley, supra n100 at 216–17 where the NZ judge was citing Grifﬁth CJ in Brown v Lizars, supra n101, at 852. R v Guildford Magistrates Court, ex p.Healy, [1983] 1 WLR 108. Supra n103, at 113, per Grifﬁths LJ. R v Plymouth Magistrates Court et al., ex p.Driver, [1985] 2 All ER 681.

Irregular Responses to International Crimes

323

because no extradition treaty existed with Turkey at the time, and that police activity had been more on a par with Healy than Mackeson.106 However, although unable to overrule Mackeson under the principles of stare decisis,107 the Divisional Court’s obiter dicta in Driver undermined Mackeson’s authority. Referring at length to English, Scottish and United States case law, Stephen Brown LJ decided that there was, in fact, no discretion to refuse jurisdiction if the defendant is before the court simply on the grounds of the means used to produce him there. Mackeson and Healy, which both spoke of this discretion, had accordingly been decided per incuriam if Driver was correct.108 The Lord Justice held that the New Zealand case of Hartley109 was in error in its interpretation of Elliott.110 Driver held that there was, in fact, no discretion for a court to deny itself competence on the basis of the means used to bring the accused before the court in Anglo-American jurisprudence.111 This view, however, ignored the English decision of Ex p.Sharf and Toscanino112 from the United States, neither of which were cited in Driver. The current English law, however, has been laid down by the House of Lords in Bennett v Horseferry Road Magistrates’Court.113 The accused’s claim was that he had been kidnapped in South Africa and, as a result of collusion between the South African authorities and the English police, forcibly returned to England without recourse to lawful extradition procedures.114 The House of Lords held that the English High Court has authority to inquire as to the means adopted to bring the fugitive before it, reversing Driver115 – disregard of extradition procedures, however, is a prerequisite to the court staying the prosecution as an abuse of process and ordering the fugitive’s release.116 If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the ﬁeld of criminal law.117

106 107 108 109 110 111 112 113 114

115 116

117

Supra n105, implicit in the judgment of Stephen Brown LJ at 690–91. Supra n105, at 697–98, citing R v Greater Manchester Coroner, ex p.Tal, [1984] 3 All ER 240. Driver, supra n105, at 698. Supra n100. Supra n89. Supra n105, at pp. 695–97. Supra n38. The U.S. authorities cited in Driver were at least thirty years old. [1994] 1 AC 42, [1993] 3 All ER 138. R v Commissioner for the Police of the Metropolis, ex parte Bennett, QBD, 1 November 1994, unreported, per Rose LJ. Supra n105. NB. A technical error whereby the United States Coastguard authorised boarding of a ship involved in narcotics offences under one provision of a treaty rather than another was insufﬁcient to vitiate jurisdiction – R v Dean and Bolden [1998] 2 Cr.App.R 171. Bennett, supra n113, at 61H and 150, respectively.

324

Chapter 6

Furthermore, not only does abduction breach international law according to the House of Lords, it is a violation of the human rights of the fugitive, sufﬁcient to vitiate the jurisdiction of the courts in such circumstances.118 Thus, the two strands of argument previously proposed in the Divisional Court for justifying the exercise of a discretion to deny competence have both been accepted by the House of Lords. The fact that the fugitive was under the sovereign protection of another State, therefore, provides certain basic guarantees which ought to be respected by all other States, according to English law.119 The other option open to an accused, is to apply for relief under the European Convention on Human Rights.120 Article 3 is as follows: No-one shall be subjected to torture or to inhuman and degrading treatment or punishment.

Disregarding the torture element, forcible abduction succeeded by enforced transit to a foreign country might qualify as inhuman or degrading treatment. In the alternative, if the Strasbourg organs ﬁnd that this general provision has not been infringed, one can turn to the more speciﬁc terms of Article 5: (1) Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . . . (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or ﬂeeing after having done so.

Abduction is so obviously illegal121 that it fails the requirement of paragraph (1) that the arrest be in accordance with a legally prescribed procedure. Moreover, it does not meet the rule set out in sub-paragraph (c) that the arrest be lawful. If an arrest is effected by a British police ofﬁcer in another country, he lacks any form

118

119

120

121

The limit on Bennett, supra n113, is that it prevents the trial, but not the issuing of a warrant for the fugitive’s arrest once back in the United Kingdom – R v Commissioner of Police for the Metropolis, ex parte Bennett, supra n114. Bennett would seem to be limited to challenging a criminal trial before English courts. Where a fugitive from Germany was lured to the United Kingdom from Ireland, a German extradition request having already been denied there, it was held that Bennett could be distinguished; it did not protect someone being sought by a third country through extradition proceedings in the English courts – Schmidt v Federal Government of Germany [1994] 2 All ER 65, esp. at 77; see also, Atta, supra n55; and see Walker, Internal Cross-Border Policing Within the United Kingdom: the High Road or the Low Road to Effective Co-operation, 56 CLJ 114 at pp. 120–21 (1997). European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (1950); hereinafter, ECHR. SHEARER, EXTRADITION IN INTERNATIONAL LAW, at p. 75 (1971).

Irregular Responses to International Crimes

325

of authority outside the territorial limits of the United Kingdom. An arrest by a police ofﬁcer of the requested State may be prima facie lawful, but if effected for the purpose of assisting in the fugitive’s kidnap or deportation to the prosecuting State on orders from that State’s authorities, it will be unlawful as regards the Convention. The thorny problem of the requested State turning a blind eye to the activities of its police ofﬁcer still remains; however, having regard merely to the wording of the Article 5(1)(f), an arrest made with a view to a subsequent extradition is expressly held to be lawful and, thus, since abduction and collusive deportation clandestinely avoid extradition, an arrest for either purpose must, by deﬁnition, be unlawful. Therefore, if a fugitive is convicted after having been abducted by or on behalf of the United Kingdom authorities, he could try to seek redress in the form of his release and compensation before the European Court of Human Rights. Even if remedies are available under the ECHR, though, it must still be recognised that these do not reﬂect the violation of general international law, but infringements of the Convention itself. Other common law countries have equally been grappling with the issue of whether jurisdiction should be waived where the accused was brought before the court by irregular means. For many years, excepting New Zealand,122 the prevailing view was that jurisdiction would not be rejected because of the means by which the accused was brought before the court. The Canadian case of Re Hartnett and Hudson and The Queen123 was permissive. However, having regard to the change in approach wrought by the passing of the 1982 Canadian Charter of Rights and Freedoms as part of the Constitution Act, as evidenced by decisions such as R v Jewitt,124 it may be that pre-1982 law would now be suspect on this matter. The South African cases of Abrahams v Minister of Justice and The State v Heymann and Dinzaka125 also permitted the prosecution to proceed, despite the fact the accused were returned to South Africa by irregular means. Nevertheless, in The State v Ebrahim,126 the South African Supreme Court, relying on Roman Law, Roman-Dutch Law of the 16th-18th centuries and Toscanino,127 held that under both types of legal system illegal rendition should render the courts incompetent

122 123

124

125

126 127

Hartley, supra n100. (1973), 14 CCC (2nd) 169 (Ont.H.C.J.); see also, Miyanda v The Attorney-General, (1992) 88 INT’L L REP.263 (Zambian S.Ct). (1983), 5 CCC (3rd) 234 (BCCA); see also Peiris, Legal Protection of Human Rights: the Contemporary Canadian Experience, [1985] LEG.STUD.261 at p. 276. Abrahams, [1963] So.Afr.L Rep. 542, cited in [1963] ANN.SURV.SO.AFR.L 38; Heymann and Dinzaka, [1966] 4 So.Afr.L Rep. 599. See also, S v December 107 INT’L L REP.186 at 187–90 (S.Africa, Appellate Division) where the fugitive claimed he was tricked into returning to South Africa, but the court held there was no vitiation of jurisdiction because his return was voluntary and the State was under no obligation to inform the fugitive of the extradition process. 31 INT.LEG.MAT.888 (1992). Supra n38.

326

Chapter 6

and that Toscanino reﬂected the proper rule. Furthermore, in Beahan v State,128 the Zimbabwe Supreme Court decided that if a transnational fugitive offender were to be brought back to the State in violation of the sovereignty of another State, then the court should decline jurisdiction. In my opinion it is essential that in order to promote conﬁdence in and respect for the administration of justice and preserve the judicial process from contamination, a court should decline to compel an accused person to undergo a trial in circumstances where his appearance before it has been facilitated by an act of abduction undertaken by the prosecuting State. There is an inherent objection to such a course both on grounds of public policy pertaining to international ethical norms and because it imperils and corrodes the peaceful coexistence and mutual respect of sovereign nations. For abduction is illegal under international law. . . . A contrary view would amount to a declaration that the end justiﬁes the means, thereby encouraging States to become law-breakers in order to secure the conviction of a private individual.129

Where the mode of surrender resulted in a breach of the fugitive’s fundamental rights, then it was held that the court would have a discretion to decline jurisdiction.130

1.3 The Civil Law Tradition The usefulness to States of irregular rendition is so great on occasions that it is not surprising to ﬁnd that courts in civil law States also refuse to divest themselves of jurisdiction. In the Belgian case of Geldof v Meulemeister and Steffen,131 the Cour de Cassation held that the balance must be in favour of prosecuting an alleged criminal. The French Cour de Cassation in Re Argoud132 decided that French courts would only be deprived of jurisdiction if the State from which the accused was taken objected and sought his return. This position was reiterated in Barbie.133 The means by which the accused is brought before the court are irrelevant.134 Finally, the Italian courts did not refuse to try the case of the Achille Lauro seajackers,135 even though their presence there was due to the illegal actions of the United States in forcing the ‘plane in which they were travelling to land in Italian territory.136 On

128 129 130 131

132 133 134 135

136

103 INT’L L REP.203 (Zimbabwe S.Ct, 1991). Per Gubbay CJ, supra n128, at 214. Supra n128, at 216–18. 31 INT’L L REP.385 (Cr de Cass.), cited in SHEARER, supra n121, at p. 74. See also, RHK v The Netherlands, 100 INT’L L REP.412 (Dutch S.Ct). 45 INT’L L REP.90 (1964). 78 INT’L L REP.125 (Cr de Cass., 1983). Supra n133, at 131. NB There was no valid Franco-Bolivian extradition treaty. See McGinley, The Achille Lauro Case: A Case Study in Crisis Law, Policy and Management at p. 323 of BASSIOUNI, LEGAL RESPONSES TO INTERNATIONAL TERRORISM (1988). Supra n135, at p. 353. See also, CASSESE, TERRORISM, POLITICS AND LAW, at pp. 101 et seq. (1989).

Irregular Responses to International Crimes

327

the other hand, Ebrahim137 was argued on the basis of Toscanino, and also Roman law and Roman-Dutch law.

1.4 International bodies and Active De Facto Extradition The burgeoning number of international tribunals dealing with serious crimes suggests that the abduction of alleged offenders will be an issue that will have to be addressed. Furthermore, the continuing unresolved status of Kosovo, presently under United Nations transitional administration, lacking, as it does, proper extradition relations, lends itself to de facto extradition. The International Criminal Tribunal for the former Yugoslavia was faced with this issue in The Prosecutor v Dragan Nikoli,c.138 The accused was allegedly abducted from the then Federal Republic of Yugoslavia and brought into BosniaHerzegovina where he was arrested by SFOR and handed over to the ICTY. He claimed that the collusion of SFOR and, implicitly, the Ofﬁce of the Prosecutor with the abductors in violating the sovereignty of the then FRY and infringing his human rights ought to vitiate the jurisdiction of the Tribunal. The Appeals Chamber proceeded on the basis that SFOR and the OTP were complicit. It found at paragraph 27 that given the heinous nature of the crimes charged, the violation of State sovereignty, particularly where Belgrade had not complained, should not vitiate the jurisdiction of the ICTY, relying in part on Eichmann.139 Furthermore, while “serious and egregious violations of the accused’s rights” could be detrimental to the integrity of the Tribunal140 permitting it to decline jurisdiction, that was not the case here. The United Nations operates as the de facto and de jure government in Kosovo, although even after over ﬁve years of a transitional administration,141 the continued inclusion of Kosovo within Serbia and Montenegro has not been questioned. Nevertheless, in terms of relations with other States, it leaves Kosovo in limbo. In one case, a Kenyan alleged to have embezzled monies from the International Organization for Migration was clandestinely brought back to Kosovo for trial.142

137 138

139 140

141 142

Supra n126. Decision on Interlocutory Appeal Concerning Legality of Arrest, IT-94-2-AR73, Appeals Chamber 5 June 2003. Supra n16. At paragraph 29, relying on Jean-Bosco Barayagwiza v Prosecutor, Case No. ICTR-9719-AR72, “Decision”, 3 November 1999, paragraph 74. In The Prosecutor v Dokmanovi,c. Case IT-95–13a-PT, 22 October 1997, where the accused had been lured into the United Nations transitional administration in Eastern Slavonia from the then FRY. The Trial Chamber held that the use of a ruse was acceptable, but not forcible abduction, relying (paragraphs 57–78) on the European Court of Human Rights and the Human Rights Committee – see Case of Lilian Celiberti de Casariego, 68 INT’L L REP.41, UNGAOR 36 Sess. Supp. 40, UN Doc. A/36/40 (1981). See UNSC Res.1244 (1999). See OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, ‘Findings into the

328

Chapter 6

He was eventually released, but it does highlight the problems with the failure of traditional international criminal law to keep pace with other developments in international law.

1.5 Conclusion On present authority, a fugitive who is brought before criminal courts in breach of international law may still be tried, but there is an growing trend to give courts a discretion to refuse jurisdiction, most forcefully expressed by Gubbay CJ in Beahan.143 The fact that there is a valid extradition treaty that would have been applicable in the instant case is increasingly relevant to whether the courts will decide to discontinue the proceedings where it has been ignored. The traditional approach of ignoring the means by which the fugitive appeared before the courts was harmful to both international public order and human rights. The Eichmann abduction led to a United Nations Security Council debate. An alleged kidnap from Caracas by Colombian agents of a senior FARC member risked war according to Venezuela.144 In a 1982 kidnap from Bolivia by the Italian government, a neo-fascist responsible for the 1980 Bologna Railway Station bombing, Pierluigi Pagliai, was fatally wounded and died without recovering from the coma in a Rome Hospital.145 This happened even with the help of the requested State, Bolivia. As far as is known to this writer, the processes of extradition have yet to kill anyone.146 Nevertheless, it is only the United States where the courts still cling to the traditional approach; elsewhere, it is recognised that the State must be seen to be abiding by the law. The problem remains, though, that extradition cannot meet all situations where rendition is required. To date, deportation and expulsion have proved much more popular.147 However since no-one acknowledges their lawful use, the practice is inherently informal and lacks guidelines to protect the individual. What is unacceptable is for States to obtain jurisdiction by means of abduction. Since deportation of fugitive offenders will never be abolished in full, a regulated system must be devised to operate alongside formal and ad hoc extradition procedures.

143 144

145 146 147

Moses Tengeya Omweno Case, 14 July 2000. See also, The Guardian p. 11, 24 JUL 2000. As to the responsibility of IOM for its involvement in his abduction, see Gilbert, Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New World Order, 10 IJRL 349 (1998). Supra n128. See The Guardian p. 18, 21 JAN 2005; p. 13, 16 FEB 2005. BBC News website 4228013.stm, 2005/02/01 22:51:46. The Guardian p. 1, 6 NOV 1982. There is an extant, valid extradition treaty between Bolivia and Italy, concluded in 1901. See Evans, International Procedures for the Apprehension and Rendition of Fugitive Offenders, [1980] A.S.I.L PROC.274.

Irregular Responses to International Crimes

329

However, abduction violates both international public order and the individual’s most basic human rights. Abduction is such a manifestly extra-legal act, and in practice so hazardous and uncertain, that it is unworthy of consideration as an alternative method to extradition in securing custody of the offender.148

Its manifest illegality ought not to be approved, implicitly at least, by the judiciary accepting jurisdiction to try the fugitive. Abduction denies the fugitive’s rights and ignores the proper and negotiated mechanism for obtaining the surrender of criminals who have ﬂed the jurisdiction. Thankfully, abduction is still used only rarely and is increasingly condemned by the courts before which the transnational fugitive offender is brought for prosecution.

2. Extraordinary Rendition Abduction and collusive deportation are means of obtaining jurisdiction over a transnational fugitive offender where extradition cannot be used or where it is deliberately avoided. Extraordinary rendition is different, but cannot be ignored in any attempt to analyze how States respond to international crime. For the purposes of this work, extraordinary rendition occurs when a State wishing to prosecute some individual transfers that individual to a third State for the purpose of indeﬁnite detention or even so as to subject them to torture or ill-treatment during questioning.149 Given that the transfer to the third State mirrors aspects of abduction more than collusive deportation, it seems most appropriate to consider it here. In point of fact, however, while extraordinary rendition appears similar to abduction or collusive deportation, it has little to do with responding to international crime. It concerns human rights violations and, possibly, breaches of the international law of armed conﬂict, sometimes by proxy,150 by a State which has already obtained jurisdiction over a transnational fugitive offender. If anything, it is a denial of international criminal law, since the transnational fugitive offender is not brought to trial and prosecuted for offences that are alleged to be a serious threat to more than one State. Moreover, if a detained person is within the jurisdiction of a State, whether

148 149

150

SHEARER, supra n121, at p. 75. See The Guardian p. 4, 12 MAR 2002. Benyam Mohammed was detained in Pakistan and allegedly transferred to Morocco and Afghanistan for the purpose of torturing him. He was later transferred to Guantanamo Bay – The Guardian pp. 1 and 6, 2 AUG 2005. See also, The Guardian p. 24, 7 DEC 2005. See Hampson, ‘Detention, the “War on Terror” and International Law’ in HENSEL, THE LAW OF ARMED CONFLICT: CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE (2005), at p. 131.

330

Chapter 6

that be in its own territory or overseas,151 that State is still responsible for human rights violations.152 A State cannot avoid liability by passing the transnational fugitive offender to a third State.153 Moreover, sending someone out of the territory to where they would face torture or other inhuman treatment, leaves the State liable for breach of its human rights obligations.154 That would also include cases where a plane landed in the territory of a State and it allowed it to leave again155 where it knew or ought to have known that there were persons on board who faced a real risk of torture or other inhuman treatment in the country of destination.156 Moreover, 151

152

153

154

155

156

On the concept of jurisdiction for the purposes of international human rights law, see Öcalan v Turkey, App.No.46221//99 (European Court of Human Rights, Grand Chamber), 12 May 2005; Ilascu v Moldova and Russia, App. No.48787/99 (European Court of Human Rights, Grand Chamber), 8 July 2004; Bankovic v Belgium et al., App.No.52207/99 (European Court of Human Rights, Grand Chamber), 12 December 2001; Issa v Turkey, App.No.31821/96 (European Court of Human Rights, Grand Chamber), 16 November 2004. It is arguable that in some cases, the European Court of Human Rights has mistakenly focused on ideas of criminal legislative jurisdiction, when Article 1 is more clearly related to concepts of State responsibility – is the State in effective control of the events leading to the violation of the victim’s human rights? (I am grateful to my colleague Professor Françoise Hampson and to Professor Colin Warbrick of Durham University for discussions on this matter; but for those discussions, this analysis would have been much the poorer – needless to add, any errors are mine alone). See also, Lopez Burgos v Uruguay (submitted by Delia Saldias de Lopez), Human Rights Committee, 29 July 1981, CCPR/C/ 13/D/52/1979. See the United States Secretary of State Condoleeza Rice’s statement in Ukraine that the United Nations Convention Against Torture “extends to US personnel wherever they are, whether they are in the US or outside the US,” – BBC News website 4506682.stm, 2005/12/07 21:14:13; The Guardian p. 15, 8 DEC 2005. See also, The Guardian p. 24, 7 DEC 2005. The United States is in the process of passing a law at the time of writing that outlaws torture or inhuman or degrading treatment by US ofﬁcials no matter where it is perpetrated – The Guardian p. 17, 16 DEC 2005: BBC News website 4533342.stm, 2005/12/15 22:29:17. NB. It should also be noted that the receiving State where the torture or ill-treatment actually take place is also responsible for the human rights violation – see The Guardian p. 17, 10 DEC 2005. See Articles 6, 16 and 17 of the Code on the Responsibility of States for internationally wrongful acts, adopted by the International Law Commission, November 2001 – see UN Doc.A/56/10, IV.E.1. Viz. Soering v United Kingdom Series A, vol. 161 (1989) dealing with Article 3 of the ECHR. See Chapter 4. See also, United Nations Sub-Commission for the Protection and Promotion of Human Rights, Resolution on the Transfer of Persons, E/CN.4/Sub.2/2005/L.12, 4 August 2005, paragraph 3. 3. Concludes therefore that the transfer of a person to a State where that person faces a real risk of being subjected to torture, cruel, inhuman or degrading treatment or extrajudicial killing would be a breach of customary international law; See ‘Alleged secret detention centres in Council of Europe member states’, Information Memorandum (revised), by Mr Dick Marty, Chairperson of the Committee, AS/Jur (2005) 52 rev 2, 22 November 2005, and the Statement by Mr Dick Marty, Rapporteur of the Committee on Legal Affairs and Human Rights on the alleged existence of secret detention centres in Council of Europe member states, Paris, 13 December 2005 (I am grateful to Andrew Drzemczewski of the Council of Europe for supplying me with these documents) – The Guardian p. 1, 14 DEC 2005. See also, The Guardian p. 13, 12 SEP 2005; p. 13, 2 DEC 2005; pp. 1 and 14, 5 DEC 2005; pp. 4 and 5, 6 DEC 2005; p. 8, 13 DEC 2005; p. 8, 20 DEC 2005; pp. 1, 2 and 10, 19 JAN 2006. BBC News website 4496322.stm, 2005/12/03 22:37:17; 4611518.stm, 2006/01/13 22:35:03. Kiliç v Turkey App.No. 22492/93, European Court of Human Rights (First Section) 28 March 2000, at paragraph 63.

Irregular Responses to International Crimes

331

where other rights would be ﬂagrantly denied or subject to gross violation, that too has been held to leave the sending State liable.157

3. Passive De Facto Extradition and the Fugitive’s Rights in the Requested State So far, only the protection afforded to a fugitive who has been returned to the requesting State without use of the processes of extradition has been considered. However, can a fugitive do anything whilst still in the State where he sought refuge to guarantee himself a safe haven or at least to obtain the safeguards contained in extradition laws? It is obvious that no State would actively encourage a violation of its sovereignty by letting other States abduct fugitives at will. Indeed, the United Kingdom, which, as was seen above, used to accept jurisdiction over fugitives no matter how they come before its courts until the 1990s, was strongly critical of Nigeria, another member of the Commonwealth, when the latter State tried to kidnap Umaru Dikko, one its own nationals, from London. Relations between the two countries were severely strained.158 On the other hand, no State wishes to keep another State’s criminals within its borders, even if extradition is not possible in the circumstances. Several more or less formal mechanisms are open to the requested State to assist in the return of a fugitive offender to the requesting State as an alternative to the extradition process. The ﬁrst of these methods is ‘hot pursuit’,159 which is undergoing a revival in Europe. It is not a new concept,160 allowing, as it does, for the police authorities of one State to cross into a neighbouring State in order to effect the arrest of a fugitive in ﬂight. Its popularity in Europe is due to the policy of internal open borders within the European Union in 1993. The then TREVI Programme of Action,161 agreed at its June 1990 Dublin meeting, talked of bilateral or multilateral arrangements to permit police forces to cross land frontiers in pursuit of ﬂagrant violators

157

158

159

160

161

See Soering, Series A, vol. 161 (1989) at paragraph 113. See also, R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department, [2004] All ER (D) 153, at paragraph 24 per Lord Bingham, paragraph 50 per Lord Steyn, and paragraph 69 per Lord Carswell. For a fuller history of the Dikko Affair, see The Times p. 1, JULY 6 1984; p. 2, 9 JULY 1984; and p. 2, 10 JULY 1984. See Bewley, Hot Pursuit, 105 POLICE REV. p. 18, 19 May 1995; Gilmore, Hot Pursuit: The case of R v Mills and Others, 44 INT’L & COMP.LQ 949 (1995); Gilmore, Drug Trafﬁcking at Sea: the case of R v Charrington et al., 49 INT’L & COMP.LQ 477 (2000). See the Franco-Basle Treaty of 1781, MARTENS, RECUEILS DE TRAITES, vol. 2, at p. 188 – cited in SHEARER, supra n121, at p. 10 n2. See also, the Anglo-Scottish “hot trods” in agreements signed in 1563 and 1640 – cited in Walker, supra n119, at p. 118 n24. Now brought within the EU framework – see Chapter Three.

332

Chapter 6

of the law and when following the authors of serious offences. Moreover, the Schengen Accord of June 1990162 allows the various police agencies of the States parties to cross land frontiers in hot pursuit, although it has to be acknowledged that it is still a contentious issue. Once the pursuit is completed and the fugitives have been ‘arrested’ by the local or the pursuing police force in any of the Schengen States, two possible options could have been provided for: ﬁrst, it might be that the police ofﬁcers from out-of-State could simply take the fugitive back to their own jurisdiction; or, secondly, having arrested him, they may have to hand him over to the authorities of the State where he was apprehended. In the latter case, the fugitive would then be the subject of an extradition request, somewhat defeating the objectives behind hot pursuit. Nevertheless, it is this option that is implemented in Article 41. On the other hand, if the pursuing police could take the fugitive back with them, then it would be more accurate to talk of ‘diffused borders’ than of hot pursuit, for the authority of the police forces would effectively be extended beyond the territorial border. Regardless of the correct terminology, it would certainly be more effective for the pursuing police to be able to take the fugitive back with them; there is no point making frontiers less of a hindrance to law enforcement in one aspect, only to then impose the need for extradition. Subject to appropriate safeguards in the bilateral or multilateral arrangements, the requested State granting a right of hot pursuit should permit the pursuing police force to apprehend and return with the fugitive, even though ordinarily a fugitive should only be surrendered to another State by means of extradition. While the implementation of the European Arrest Warrant163 still requires the requested State to have a judicial procedure for surrender, it is so simpliﬁed by comparison with traditional extradition that Schengen hot pursuit is no longer quite so hobbled. The second form of assistance that the requested State can offer is to exclude the fugitive before he enters its territory, thereby denying him the opportunity to avail himself of the protections and procedural delays that extradition affords. Whereas hot pursuit will be a lawful mechanism for both the requesting and the requested States, because it will have been established by treaty or other formal arrangement, exclusion is legally questionable if its purpose is to avoid the processes of extradition. While States have the right to refuse entry to any non-national,164 especially 162

163

164

30 INT.LEG.MAT.84 (1991), Articles 39 et seq., especially Articles 40 and 41. See now, the Schengen Acquis, as referred to in Article 1(2) of Council Decision 1999/435/EC of 20 May 1999, OJ L 176, 10 July 1999, p. 1; extended to the United Kingdom by Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen Acquis, 2000/365/EC, OJ L 131, 1 June 2000, p. 43 (Articles 39 and 40, but not 41). See also, MEIJERS, DEMOCRACY, MIGRANTS AND POLICE IN THE EUROPEAN UNION: THE 1996 IGC AND BEYOND, 1997. OJ L 190 18 July 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). Quaere refugees. See Chapter Eight below.

Irregular Responses to International Crimes

333

ones who may be undesirable criminals, excluding a ﬂeeing fugitive is tantamount to sending him back to the locus delicti without using extradition. Nevertheless, exclusion is widely used. Statistics of the former West German Border Police show that in 1986–88 approximately 90,000 people were at least temporarily detained trying to enter or leave the F.R.G., seventy per cent of them for serious offences, such as drugs offences or crimes against the State.165 At a formalised level, since 1986 the United States had, through its former Alien Border Control Committee, attempted to devise procedures to prevent known terrorists from entering its territory.166 In the United Kingdom, the Immigration Rules167 allow for refusal of leave to enter to anyone convicted anywhere of an offence that would carry a penalty of twelve months.168 With the coming in 1993 of an internal open borders policy within the European Union, even greater emphasis was placed on exclusion at the external frontiers. The [European] Commission proposes that around the external borders of the Community there should be erected – by agreement between member States – a cordon sanitaire to keep out drug trafﬁckers, terrorists and other criminals, refugees together with unwanted immigrants. Greatly increased co-operation between police and judicial authorities, shared intelligence and stricter internal controls would offset the consequences of permitting these undesirables – if they have breached the perimeter fence – to circulate freely around Europe.169

More informally, police forces will sometimes notify the immigration authorities of the State to which a fugitive is heading in order that he might be excluded. There will be no international agreement to be brought into play as considered above, but rather de facto extradition will be effected at the low level of the individual police ofﬁcer and immigration ofﬁcer. In a 1990 British murder case, local police tipped off the New York immigration authorities that a suspect was expected to arrive there imminently. He was denied leave to enter the U.S.A. and, technically, he had to be sent back to his point of departure; in point of fact, British police ﬂew to

165

166

167

168

169

See pp. 58 and 189 of HOUSE OF LORDS SELECT COMMITTEE ON THE E.C., 22nd REPORT, 1992: BORDER CONTROL OF PEOPLE, HL 90 (1988–89). See Note Verbale from United Kingdom Permanent Representative to the Council of Europe, Appendix VI, DH (89) 1. This work was taken over by the Department of Homeland Security following the events of 11 September 2001 – see http://www.cbp.gov. On the ABC Committee, see Mock, The I.N.S. Response to Terrorist Threats, at pp. 231 et seq. of BASSIOUNI, LEGAL RESPONSES, supra n135x. Immigration Rules (HC 395, 23 May 1994), paragraph 320(18), as amended – http:// www.ind.homeofﬁce.gov.uk/ind/en/home/laws_policy/immigration_rules.html?. That is, it would be punishable by a term of imprisonment of 12 months or more if it had been committed in the United Kingdom. Paragraph 21, HOME AFFAIRS SELECT COMMITTEE REPORT ON PRACTICAL POLICE CO-OPERATION IN THE EUROPEAN COMMUNITY, vol. 1, HCP 363 (1990); hereinafter, HCP-I or HCP-II.

334

Chapter 6

New York to escort him back.170 On the ground that he had never entered the United States, there was no question of him having any of the safeguards associated with extradition; it was as if he was still in British territory when ‘arrested’ at New York airport. Finally, and even more questionably, if the fugitive has already entered the requested State, then rather than use the proper procedure of extradition, the authorities in the requested State might assist in returning the fugitive by deporting him.171 While abduction will be treated as a violation of sovereignty by requested States, collusive deportation will actively involve the government of the requested State.172 In such a situation, can the fugitive look to the courts of the requested State for protection? The law in this area is in a state of ﬂux. Some decisions favour the fugitive, while others merely look to see if the deportation or expulsion is technically lawful, regardless of the underlying motive of the requested State to avoid its extradition procedures. Within the latter category, one of the most absolute cases is Sitaram.173 The Burmese High Court held that the courts would not inquire into the desirability of using deportation instead of extradition and that the executive did not have to give any reasons for its actions. Probably, the leading common law authority is R v Brixton Prison (Governor), ex p.Soblen.174 The facts of the case were as follows. Soblen was a naturalised citizen of the United States who had been convicted of espionage for passing secrets to the former U.S.S.R. Pending appeal to the Supreme Court, he was released on bail. When his appeal was dismissed, he ﬂed to Israel. There was no extradition treaty between the United States and Israel at that time, but the Israelis put him on 170 171

172

173 174

See The Guardian p. 2, 1 SEP 1990, concerning the murder in Leeds of Frank Harris. See the summary deportation of Enrique Gorriarán, one of the most notorious guerrilla leaders in the Americas, from Mexico to Argentina – The Guardian p. 19, 20 JUN 1997. Pakistan deported a suspected bomber of the United States Embassy in Nairobi to Kenya which then deported him to the United States – The Guardian p. 12, 17 AUG 1998; p. 2, 28 AUG 1998; p. 16, 29 AUG 1998. See also, the irregular rendition of an Al Quaeda suspect by Pakistan to the United States – BBC News website 4614147.stm, 2005/06/06 13:06:15; see also, The Guardian p. 4, 17 SEP 2002. Likewise, Georgia – The Guardian p. 14, 23 OCT 2002. Zambian police arrested Martin Mubanga and handed him over to the United States from where he was transferred to Guantanamo Bay – The Guardian p. 10, 14 JUL 2004. The Gambia arrested a suspect who was then transferred to Bagram Airbase in Afghanistan before being moved to Guantanamo Bay – The Guardian pp. 1 and 2, 11 JUL 2003; p. 7, 19 DEC 2005. Finally, a joint Thai-CIA operation led the suspect to be taken off by United States authorities to a secret destination for interrogation.The Guardian p. 2, 15 AUG 2003. As to whether rendition to Guantanamo Bay raises issues of the international law of armed conﬂict, see Hampson, ‘Detention, the “War on Terror” and International Law’ in HENSEL, THE LAW OF ARMED CONFLICT: CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE (2005), at p. 140. Sitaram v Superintendent Rangoon Central Jail, 28 INT’L L REP.313 (1957). [1962] 3 All ER 641. See O’Higgins, Disguised Extradition – The Soblen Case, 27 MOD.L REV.521 (1964); Thornberry, Dr Soblen and the Alien Law of the United Kingdom, 12 INT’L & COMP. LQ 414 (1963); Evans, Reﬂections on the Political Offence in International Practice, 57 AM.J INT’L L 1 (1963). For the facts of the case see The Times, JUNE-SEPT 1962.

Irregular Responses to International Crimes

335

a specially chartered aeroplane to Athens.175 It was alleged that the United States Chief Marshal was on board, although, since the latter was outside the U.S.A., he obviously lacked any authority. At Athens, Soblen was put on board an El Al ﬂight bound for the U.S.A. via London. The British Home Ofﬁce had been warned of his impending arrival and had drawn up a refusal of leave to enter the United Kingdom. However, with the ‘sole intention’ of obtaining entry to the United Kingdom, Soblen inﬂicted knife wounds on himself necessitating hospitalisation in England. Two days after arrival, he was served with a refusal of leave to land under Article 1(1) of the Aliens Order, 1953. El Al was also ordered to take him on his interrupted journey to the United States. He applied ex parte for a writ of habeas corpus which issued; simultaneously he was served with a detention notice under Article 8(3) of the Aliens Order, 1953. The writ of habeas corpus was discharged and an appeal to the Court of Appeal was dismissed. El Al was again ordered to take him, but they refused to comply; by this time opinion in Israel had changed and the government of the day was pressured into denouncing Soblen’s proposed removal to the U.S.A. which it had initiated. A deportation notice was served on Soblen under Article 20(2)(b) of the 1953 Order. The Home Secretary stated at the time that it was his intention that Soblen be placed on a vessel going to the U.S.A. Soblen reapplied for habeas corpus on four grounds: (i) the Aliens Order, 1953, was invalid because there was no war or emergency when it was made, such that the Aliens Restriction Act 1914 was inoperative in 1953; (ii) the deportation order was invalid because it purported to be made in respect of an alien who had previously been refused leave to land. The two orders could not co-exist; (iii) further, the deportation order was invalid because the deportee had not had the chance to make representations to the Home Secretary before it was made; and (iv) ﬁnally, the deportation order was being used for an ultra vires object by the Home Secretary, in that Soblen was being returned to the United States to serve a prison sentence for an offence for which extradition could not be granted, namely espionage. This ﬁnal ground alleged ‘disguised extradition’.

It is of note that the Home Secretary claimed crown privilege in relation to certain correspondence between himself and the United States government.176 The Divisional Court dismissed this reapplication, so he again appealed to the Court of Appeal. For the purposes of de facto extradition only the fourth point is of importance.177 Can a deportation order be challenged with any hope of success,

175

176 177

For the Israeli government view of its actions in the Soblen affair, see the Ministerial Report, 2 INT.LEG.MAT.419 (1963). Supra n174, at 641–43 (Headnote). However, for the sake of completeness, the ﬁrst three will be dealt with brieﬂy.

336

Chapter 6

where the process is being used in substitution for or to avoid extradition? The Court of Appeal relied heavily on the decision in R v Secretary of State for Home Affairs, ex p.Duke of Chateau Thierry.178 The Duke was a French national of military age who had been living in England for several years. A deportation order was made against him under s1(1) Aliens Restriction Act 1914 and Article 12, Aliens Restriction (Consolidation) Order 1916. The order did not state where he was to go after being deported from the United Kingdom,179 but the Attorney-General, on behalf of the Home Secretary, admitted that it was intended to use the said order to return him to France for military service. The Divisional Court made absolute a rule nisi for a writ of certiorari, holding the Home Secretary had no power under the legislation then in force to specify any particular destination, even impliedly. The Divisional Court held deportation could not be used to effect an extradition.180 The Home Secretary in Chateau Thierry appealed and the Court of Appeal reversed the lower court’s decision. First, it held that if a deportation order is valid on its face the court will not go behind it to see the purpose to which it is being put.

178 179 180

(i) Soblen’s ﬁrst argument was rejected because the 1914 Act had been amended in 1919 and the powers thereunder could be invoked irrespective of whether there was a war or emergency. [s1, Aliens Restriction (Amendment) Act 1919. See Lord Denning MR, supra n174, at 658 C-E]. Deportation is now dealt with in the Immigration Act, 1971, which is unrestricted as to circumstances of application. (ii) The second ground is irrelevant today, for the rules on deportation are now contained in the Immigration Rules made under the Immigration Act, 1971. On the 1953 rules, Lord Denning and Donovan LJ, with whom Pearson LJ concurred, [supra n174, at 658 E-F, 663 A-B and 669 H, respectively] held that where the order to take a person refused leave to land on his journey is ignored by a carrier, then a deportation order could be made. The powers under Articles 8 and 20 were cumulative and complementary, not mutually exclusive. Under the present rules, [HCP395; and see Chapter Eight, below] Soblen may have fared a little better, for within the provisions on deportation [Paras. 362 et seq., especially Para. 380] express reference is made to the Convention and Protocol Relating to the Status of Refugees [189 UNTS 137 at p. 150 and 606 UNTS 267, respectively; Parts 11, 12, 11A and 11B of the Immigration Rules deal with asylum applicants]. The Convention and Protocol prohibit states returning people to where they will face persecution, inter alia, for their political views. (iii) As for the assertion that the fugitive has the right to make representations to the Home Secretary before a deportation order is made, it was rejected on grounds of convenience, although the fact the denial of the alleged right violated a general common law principle, was recognised. The Court of Appeal relied on the 1920 decision of R v Leman Street Police Station Inspector, ex p.Venicoff, [1929] 3 KB 72. That case was held to be good law, for Parliament had re-enacted the rules in 1953 in exactly the same terms, obviously assuming it was still applicable. Lord Denning MR also considered relevant the fact that many deportees could make representations to the Chief Magistrate at Bow Street and thought that there may be a right to do so after the order is made, but before execution. The present position is set out in Chahal v United Kingdom, European Court of Human Rights, (70/1995/576/662) 15 November 1996. [1917] 1 KB 552 and 922 (CA). Supra n178, at 923. Under the Immigration Act 1971, once a deportation order is made under s5 thereof, the Home Secretary can nominate either a country of which he is a national or citizen, or any country or territory to which there is reason to believe he will be admitted. Sch.3(1), 1971 Act.

Irregular Responses to International Crimes

337

The order on the face of it, however, is only an order that the respondent be deported, and if that be a valid order it cannot be quashed.181

An order could only be quashed if the deportee was not an alien.182 Finally, the court held there was nothing wrong in using deportation to effect the return of military absentees. Indeed, there was in existence a treaty whereby the English and French governments agreed to return nationals of military age to their respective countries.183 However, such persons were deserters under French law; they were, thus, fugitive offenders and should have been dealt with under the then 1870 Extradition Act. It is a well settled principle that the Crown does not have a prerogative power to send persons who have committed an offence in a foreign State back to the locus delicti.184 For some time the law was doubtful, but later it became recognised that the Crown could not surrender an alleged criminal even if it wished to do so, unless the surrender was authorised by legislation.185

The power is statutory only and, with respect to France, it was to be found at the time of Chateau-Thierry in the Extradition Act 1870. For the 1870 Act to have applied, there needed to be an ‘arrangement’. The 1917 Agreement would have fulﬁlled this requirement, but there was no Order in Council implementing it, as required. Therefore, the Duke could have argued that the Crown was bypassing the pertinent extradition procedures which should have been the sole basis for the power it was exercising. It should not be asserted on the one hand, that the only method of returning fugitive offenders is by way of the processes of extradition, if, on the other hand, the relevant statute is then to be disregarded while the Government use deportation to effect the same purpose.186 The Duke could have alleged the Crown was acting ultra vires in using deportation in order to extradite. In Ex p.Sacksteder,187 Pickford LJ, stated the following. But I am certainly not inclined to say that in no case can the court go behind an order which on the face of it is valid, ordering detention or custody. If the purpose behind it is such as to show that the order is not a genuine or bona ﬁde order, it seems to me the Court can go behind it.

181 182 183 184 185

186 187

Supra n178, at 932 per Pickford LJ. Cf. R v Superintendent of Chiswick Police Station, ex parte Sacksteder, [1918] 1 KB 578 at 586. 111 B.F.S.P.251. Barton v Commonwealth of Australia, (1974) 131 CLR 477 at 484 per Barwick CJ. McNAIR, INTERNATIONAL LAW OPINIONS, vol. 2, at p. 41 (1956); cited by Lord Denning MR, supra n174, at 659. Cf. Thornberry, supra n174, at pp. 463–64. Supra n182, at 586–87.

338

Chapter 6

Therefore, it has been recognised that although a deportation order may appear valid, it may in fact be a sham, a disguise to effect an extradition, and that in such a case the court may quash it. In Soblen itself, the defendant was alleging that the Home Secretary was using the deportation processes to extradite him when this would otherwise be impossible – espionage was not a listed extradition crime for the purposes of the then law. Under present United Kingdom law, if Soblen was to be deported on the ground that it was conducive to the public good, his best defence would come via human rights law.188 As for Soblen’s contention that the deportation order was ultra vires, having been issued for the ulterior motive of a ‘disguised extradition’ to the United States for a non-extraditable, political offence, their Lordships followed Chateau Thierry. They held that if a deportation order is good on its face, it will not be questioned without further evidence. On the other hand, if the Home Secretary was deporting Soblen for an unlawful purpose, Lord Denning MR did say the court would investigate.189 The Court of Appeal found that Soblen had not proved the Home Secretary’s mala ﬁdes. However, it is contended that on the evidence their Lordships refer to themselves, there is sufﬁcient evidence to show that the Home Secretary had always intended to help in the transit of Soblen from Israel to the U.S.A. Whether Soblen’s presence in the United Kingdom was conducive to the public good or not, the Home Secretary was going to send him on his way to the U.S.A. through a de facto extradition, in much the same way that Israel had unofﬁcially assisted in his departure.190 Lord Denning’s dictum indicates that it is technically possible in English law to challenge a disguised extradition, but there was an evident unwillingness on the part of the courts to tread into the arena of international politics.191

188

189

190 191

See Chahal, supra n177. NB. It was not even possible to take a complaint to the European Commission of Human Rights in Soblen’s day, whereas anyone can now question whether the acts of a public authority are in conformity with the ECHR before courts in the United Kingdom under the Human Rights Act 1998. Supra n174. The problem, however, would be in proving the Home Secretary’s mala ﬁdes. The Court of Appeal laid down two different tests as to the amount of evidence that ought to be adduced and, with regard to this question, it must be remembered that the Home Secretary can claim crown privilege, making it very difﬁcult for the deportee to prove bad faith. Lord Denning MR called for sufﬁcient evidence upon “which it could reasonably be supposed that the Home Secretary was using the power of deportation for an ulterior purpose” [at 661F]. If this amount is brought before the court, then the Home Secretary will be required to give an answer if he wants to preserve the order. Donovan LJ, realising that crown privilege will usually be claimed for government documents, provided a test relating to what needed to be shown without such evidence. Under his test, the deportee needs to raise a prima facie case or “sow such substantial and disquieting doubts in the mind of the court about the bona ﬁdes of the order he is challenging, that the court will consider that some answer is called for” [at 664H]. All three members of the court found that Soblen failed to discharge the burden. See United States v Salzmann, 417 F.Supp 1139 at 1159 (1975). See Thornberry and O’Higgins, both supra n174.

Irregular Responses to International Crimes

339

In the event, Dr Soblen committed suicide on the morning of his intended deportation.192 It is one of the saddest and unworthiest events in the United Kingdom’s participation in international assistance in criminal matters.193 It also reafﬁrms the importance of using the appropriate procedures agreed between States to effect a desired result. The words of a Member of Parliament commenting on the Home Secretary’s defence of his actions in the Soblen case sum up the problems in taking part in collusive deportation either to avoid, expedite or ignore the processes of extradition. When the [Home Secretary] said that his defence was what had been said by the Court of Appeal, it would have been more convincing if he himself had not suppressed the evidence on which the Court of Appeal came to its decision . . . [in the course of the incident]. I could not help feeling that the Rt.Hon. Gentleman was lucky that he was the man he is, for anybody else in his shoes would have felt bitterly ashamed of himself.194

Regardless of its irregularity, States throughout the world have used deportation in order to effect a de facto extradition. In 2005, the Supreme Court of Canada was prepared to order the deportation of Leon Mugasera195 who was wanted by Rwanda for genocide, although Rwanda will have to provide guarantees regarding his subsequent treatment.196 The Dutch Supreme Court in 1963 held in the Wallace case197 that a foreign national might be deported if convicted of a criminal offence, even though he might face prosecution in the State of which he was a national.

192 193

194

195

196 197

The Times, 12 SEP 1962, p. 8, col.6. Since Soblen, the United Kingdom has avoided such a spectacular de facto extradition. R v Governor of Pentonville Prison, ex parte Cheng, [1973] AC 931, involved another fugitive bound for the United States who injured himself in order to enter the U.K. The government rejected deporting Cheng and chose to extradite him because of fears of repeating Soblen. However, R v Secretary of State for Home Affairs, ex parte Hosenball [1977] 2 All ER 542, is one example of disguised extradition being attempted and there is the slightly ridiculous case of Vladimir Leontev. Leontev, a Russian émigré living in France, appeared before a British court on a driving charge. During the hearing he collapsed, but doctors decided he was feigning. The French police requested his return to interview him about the robbery of £25,000, a sum he just so happened to have on him when arrested in England. While still ‘unconscious’, he was deported to face questioning in France. Because of the slightly ridiculous circumstances surrounding Leontev’s departure, it was not noticed that the power to deport was being used to effect a de facto extradition. See The Times p. 3, 13 DEC 1985. Paget MP, 28 November 1962, 662 H.C.DEB.445–6. Cited in Thornberry, supra n174, at p. 465 n91. Minister of Citizenship and Immigration v Léon Mugesera, Gemma Uwamariya, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie-Grâce Hoho – and – League for Human Rights of B’nai Brith Canada, PAGE RWANDA, Canadian Centre for International Justice, Canadian Jewish Congress, University of Toronto, Faculty of Law – International Human Rights Clinic, and Human Rights Watch (F.C.) 2005 SCC 40 / 2005 CSC 40, 28 June 2005. BBC News website 4631687.stm, 2005/06/28 18:40:41. Wallace v The State of Netherlands, [1963] Ned.Jur. No.509, cited in SHEARER, supra n121, at p. 82.

340

Chapter 6

However, it was prepared to countenance the possibility that in some cases the deportation order might be illegal. Similarly ambivalent is the decision in CvH v The Netherlands.198 Here The Netherlands withdrew an extradition request because of problems with the principle of specialty for fugitives wanted from France, in the expectation that the French authorities would then deport them to The Netherlands. The District Court of the Hague held that there was no legal duty on the Dutch authorities to prevent France from expelling the fugitives to The Netherlands. Japan performed a remarkably similar ‘service’ to Soblen for the Republic of China in 1971. In State of Japan v Mitsuyo Kono and Takao Kono,199 the Tokyo High Court deported the respondents’ husband and father, Liu Wen Chen, to Taiwan following an informal request for his return. His wife and son sued the State on the basis that if extradition had been used, as was appropriate, the political offence exemption would have been available as a defence to him. The court held that deportation could properly be used, if permitted, and the processes of extradition avoided thereby. Until Iceland offered him citizenship, Japan was due to deport Bobby Fischer, the former World Chess Champion, to the United States where he was accused of breaching sanctions by having played in the former Federal Republic of Yugoslavia in 1992 contrary to US law.200 Equally, Venezuela deported the former Peruvian spy chief, Vladimiro Montesinos, back to Lima to face corruption charges, although it was based on him having no proper documentation when arrested in Caracas.201 Furthermore, Argentina deliberately passed a new deportation law in order to avoid complex extradition procedures.202 Notwithstanding the above authorities, there seems to be a trend for courts to query more forcefully attempts to achieve de facto extradition by deporting the fugitive offender. The Superior Administrative Court of Münster in the Residence Prohibition Order case (No. 2)203 refused to order the fugitive’s expulsion because he would not be guaranteed the rights inherent in extradition. The Court of Appeals in Doherty v United States Department of Justice, INS204 overturned the AttorneyGeneral’s decision to designate the country to which Doherty should be deported because it believed the decision to have been inﬂuenced by foreign policy considerations.205 The Federal Court of Australia also dealt with the issue in Schlieske.206 Extradition to the former F.R.G. having twice failed, the Australian government

198 199 200

201 202 203 204 205 206

100 INT’L L REP.404 at 407. 59 INT’L L REP.472 (1971). The Guardian p. 3, 17 JUL 2004; p. 18, 29 JUL 2004; p. 15, 12 AUG 2004; p. 13, 24 MAR 2005; p. 3, 25 MAR 2005. BBC News website 2774659.stm, 2003/02/18 22:39:43. The Guardian p. 16, 12 MAR 2005; BBC News website 4344503.stm, 2005/03/13 06:57:13. 61 INT’L L REP.433 (1968). 908 F.2d 1108 at 1121 (1990). Reversed on other grounds – INS v Doherty 502 US 314 (1992). Schlieske v Minister for Immigration and Ethnic Affairs, (1988), 84 ALR 719 at 729.

Irregular Responses to International Crimes

341

sought to deport Schlieske. While accepting that it was permissible to deport a person who would face criminal charges in the country to which he was being sent, the court went on to hold that deportation for the sole purpose of bringing a person to justice in a foreign State was outside the purposes of the relevant statute: disguised extradition was not permissible. The relevant principle is that the power to deport a prohibited non-citizen, while wide and unqualiﬁed by any statutory provision, must be exercised for the purposes of the Migration Act, that is to say, in aid of the sovereign right of this country to determine who shall be permitted to enter it and who should be excluded therefrom. . . . [It] is plainly extraneous to the decision to deport a person, and to deport that person to a particular country, that the person is wanted by the government of that country upon criminal charges. It is not one of the purposes of the Migration Act to aid foreign powers to bring fugitives to justice. There is a distinct head of constitutional authority – namely the external affairs power – and a distinct mechanism – the extradition legislation – under which that object may be pursued.

The Austrian Law on Extradition and Mutual Assistance in Criminal Matters goes so far as to prohibit the use of deportation as an alternative to extradition.207 Moreover, in the United Kingdom, collusion by Zimbabwe and the United Kingdom to deport a person illegally so as to avoid extradition led to him being freed from prison nine years later because a conviction obtained via an abuse of process was deemed “unsafe”.208 In the other direction, the United Kingdom refused to deport an Egyptian who is a member of the Muslim Brotherhood because of the failure to obtain adequate guarantees about his subsequent treatment.209 The Constitutional Court of South Africa held that disguised extradition was unconstitutional without diplomatic assurances in Mohamed v President of the RSA, except possibly where the transnational fugitive offender was a national of the State to which he was to be returned.210 207 208

209

210

See MURPHY, PUNISHING INTERNATIONAL TERRORISTS, p. 88 (1985). R v Mullen, Case No: 9704978/Z3, Court of Appeal: Criminal Division, unreported, 4 February 1999. In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence. This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justiﬁed the proceedings then being stayed. In as much as that discretionary exercise now falls to be carried out by this Court, we conclude that, by reason of this abuse of process, the prosecution and therefore the conviction of the appellant were unlawful. See also, Warbrick, Judicial Jurisdiction and Abuse of Process, 49 INT’L & COMP. LQ 489 (2000). Youssef v The Home Ofﬁce [2004] EWHC 1884 (QB). See also, The Guardian p. 7, 16 NOV 2004 and UK: Egyptian national “unlawfully detained” after intervention by Prime Minister, 14:5 Statewatch (Aug-Oct 2004) 22. NB. The Guardian asserted that the expulsion from the United Kingdom of Saudi dissidents was part of a £40 billion arms deal – p. 4, 28 SEP 2005. [2001] (7) BCLR 685 at paragraphs 33–36.

342

Chapter 6

The most forthright judicial statement against disguised extradition, however, is to be found in the judgment of the European Court of Human Rights in Bozano v France.211 The Italian government’s extradition request for Bozano had been rejected by the French courts on the ground of ordre public; such a ﬁnding was binding on the French government. However, since extradition was impossible, the French authorities agreed to deport him to Switzerland from where his extradition to Italy would present no problem. Having been sent to Italy by these means, he appealed to the European Court of Human Rights, partly on the basis that his rights under Article 5(1)(f) had been violated. The Court held that actions to deport must be lawful having regard to domestic law if Article 5(1)(f) is to be satisﬁed.212 Moreover, the arbitrariness of deportation, lacking as it does, the safeguards and proper procedures of extradition, also renders it contrary to the European Convention on Human Rights. Finally, the Court held that disguised extradition, per se, was unlawful under Article 5(1)(f), because it meant that the fugitive was not detained “with a view to deportation”.213 Thus, within the Council of Europe it now seems to be the case that if the fugitive is deported for the sole purpose of effecting a de facto extradition, then such deportation will violate Article 5(1)(f). The Court has effectively held that de facto extradition is not a lawful use of the powers of deportation. It was followed in Boudellaa, Lakhdar, Nechle and Lahmar v Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina,214 where it was held that the revocation of citizenship of several Algerians and their hand over to United States forces who then took them to Guantanamo Bay violated several articles of the ECHR, part of the domestic law of Bosnia-Herzegovina. The hand over without reference to extradition procedures violated Article 5215 and Article 6.2216 of the ECHR, as well as Article 1 of Protocol 6.217 211

212 213 214

215 216 217

Series A, vol.111, 9 EHRR 297 (1986). The decision is also binding on English practice, casting doubt on the possibility of any repeat of Soblen, supra n174. See also Chahal, supra n177. Supra n211, paras. 53–58. Supra n211, para. 60. Case nos.CH/02/8679, CH/02/8689, CH/02/8690 and CH/02/8691, Human Rights Chamber for Bosnia-Herzegovina, 11 October 2002. See paragraph 230 of the judgment. Paragraph 249. There was, however, no violation of Article 3 ECHR: 320. To sum up, the Chamber ﬁnds that the respondent Parties were not under an obligation to evaluate whether the conditions of detention at Camp X-Ray strike the right balance between security requirements and the basic rights of the detainees before handing the applicants over to US forces. Moreover, the Chamber observes that it has not been alleged that there is a consistent pattern of gross human rights violations in the United States of America, and that the threshold for ﬁnding a violation of Article 3 due to conditions of detention dictated by security concerns is very high. Finally, the Chamber notes that the US President’s Military Order provides that all prisoners shall be treated humanely and that US authorities have admitted the International Committee of the Red Cross to monitor the conditions of detention at Camp X-Ray. On the basis of all the above considerations, the Chamber concludes that the respondent Parties did not violate their duty to protect the applicants from torture or inhuman or degrading treatment or punishment by handing them over to the United States. Accordingly, the Chamber ﬁnds that there has been no violation of Article 3 of the Convention by the respondent Parties.

Irregular Responses to International Crimes

343

267. In summary, the Chamber ﬁnds that the international ﬁght against terrorism cannot exempt the respondent Parties from responsibility under the Agreement, should the Chamber ﬁnd that the hand-over of the applicants to US forces was in violation of Article 1 of Protocol No. 6 to the Convention or Article 3 of the Convention. ... 300. In conclusion, the Chamber ﬁnds that considerable uncertainty exists as to whether the applicants will be charged with a criminal offense, what charges will be brought against them, which law will be deemed applicable, and what sentence will be sought. This uncertainty does not exclude the imposition of the death penalty against the applicants. On the contrary, the US criminal law most likely applicable to the applicants provides for the death penalty for the criminal offences with which the applicants could be charged. This risk is compounded by the fact that the applicants face a real risk of being tried by a military commission that is not independent from the executive power and that operates with signiﬁcantly reduced procedural safeguards. Hence, the uncertainty as to whether, when and under what circumstances the applicants will be put on trial and what punishment they may face at the end of such a trial gave rise to an obligation on the respondent Parties to seek assurances from the United States, prior to the hand-over of the applicants, that the death penalty would not be imposed upon the applicants. The Chamber therefore ﬁnds that, in handing over the applicants to US forces, the respondent Parties have failed to take all necessary steps to ensure that the applicants will not be subject to the death penalty. They have thereby violated Article 1 of Protocol No. 6 to the Convention.

On the other hand, Abdullah Ocalan was collusively deported from Kenya to Turkey.218 It ended a month of high farce on the international stage as Ocalan had sought refuge in various European States and ultimately Kenya, having been expelled from his base in Syria by the authorities in Damascus in October 1998. The details of his movements following his departure from Syria are not wholly clear, but his case highlights aspects of the law relating to the international protection of refugees, extradition law, disguised extradition, and international human rights law. For this analysis, only disguised extradition is of relevance. The full facts are not known, but since leaving Syria it seems that he ﬁrst went to Russia for a time before being arrested in Italy because he had entered the country on a false passport, although the Italian government alleged his arrest was the result of an international arrest warrant issued by Germany in 1990. An extradition request was received from Turkey, but rejected. The Germans did not execute the 1990 warrant. At this point, the picture becomes even murkier, but Ocalan then left Italy and sought asylum in various European states. He possibly went to Russia before ﬂying to Greece, at minimum refuelling on Corfu, before ﬂying on to Kenya219

218

219

See for the build up to the European Court of Human Rights case, Gilbert, The Arrest of Abdullah Ocalan, 12 LEIDEN J. INT’L L 565 (1999). Some of this next section is taken from there. It would seem that he was not offered asylum in Greece because it was afraid this might jeopardise its plans to join the single European currency in 2001, a factor clearly relevant to a decision on non-refoulement!

344

Chapter 6

where he stayed at the Greek embassy in Nairobi until 15 February 1999. Whether with Greek complicity or not, he left the embassy compound and was then ﬂown on a private jet back to Turkey in the company of Turkish commandos; the full extent of the involvement of the Kenyan authorities is equally unclear.220 How Ocalan left the Greek embassy is unknown, although one would have expected a formal protest from Greece if either Kenyan or Turkish troops had seized him on diplomatic premises. Article 22 of the Vienna Convention on Diplomatic Relations, 1961221 provides that the premises of the mission shall be inviolable and that the receiving state, Kenya, was under a special duty to protect them, although Article 41.3 provides that they must not be used in any manner incompatible with the functions of the mission. Is using the embassy as a place of refuge incompatible with the functions of the mission? The question was left open by the 1961 Convention, but even if it were a breach of Article 41, it hardly seems to justify a violation of the Article 22 inviolability.222 Greek complicity in his being obtained by the Turkish authorities, however, would leave Greece open to a complaint before the European Court of Human Rights that it had breached his rights under Article 3.223 After his return to Turkey, he was tried and convicted. He took his case to Strasbourg, in part based on the means of rendition.224 According to the Grand Chamber: 86. The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any speciﬁc rights recognised in the Convention (see Stocké v Germany, Series A, vol. 199 (1989), opinion of the Commission, §169).

Paragraph 90 provides that only once the applicant has shown that the defendant State “acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law” shall the burden of proof be shifted to the respondent State to prove the contrary. On the facts, his arrest by Turkish forces in Nairobi with the presumed consent of the Kenyan authorities meant there was no breach of Article 5.1. However, while the reaction of the Kenyan authorities may be a relevant matter for the Turkish courts in deciding whether to cede jurisdiction, it ought to be irrelevant to the European Court of Human Rights that should only be concerned with violations of the ECHR by

220 221 222 223 224

See 12 LEIDEN J. INT’L L 565 (1999). 500 UNTS 95. HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 350–354 (5th ed., 1998). Chahal, supra n177. Ocalan v Turkey, App.No.46221/99 (European Court of Human Rights, Grand Chamber) 12 May 2005, at paragraphs 73 et seq.

Irregular Responses to International Crimes

345

Turkey vis à vis the applicant.225 Furthermore, the fact that he was forced to wear handcuffs and was blindfolded during the ﬂight did not amount to a breach of freedom from torture, inhuman or degrading treatment contrary to Article 3.226 In sum, one can view Ocalan as a narrow interpretation on its facts of the principles enunciated in Bozano or as a retreat from those principles. In the end, though, the two cases are sufﬁciently different that Bozano is not undermined – in that case, the applicant was complaining about his treatment by the expelling State, France, an option not open in Ocalan since Kenya is not a member of the Council of Europe.

4. Conclusion So far it has been seen that there are no universally applied controls on de facto extraditions, whether in the requested State or on return to the requesting State. As an alternative to extradition, abduction must be rejected, but it is very unlikely that States will ever completely cease to use deportation, despite Bozano, even if ad hoc extradition develops in future years. Opinion seems to be divided as to whether deportation is something that should be ofﬁcially rejected or whether a regulated system of expulsion, providing quasi-extradition safeguards, should be imposed.227 As Bassiouni has noted, the law enforcement authorities will ﬂout the law to obtain jurisdiction in some instances. This creates, of course, serious problems for the integrity of the legal process, even though it may be a manifestation of the frustration of law enforcement authorities with their inability to make the extradition system work with the speed and satisfaction they desire.228

Indeed, the number of instances may be increasing.229 Thus, extradition on its own is insufﬁcient and inadequate. As was argued by Judge Schermers, dissenting in the Commission’s the decision in Bozano,230 the extradition process may sometimes be too formal. Nevertheless, there is an inertia among States to regulate an informal system designed to expedite State interests at the expense of the transnational fugitive’s guarantees. However, while procedures other than extradition may be

225 226

227

228

229 230

See paragraphs 95–99. See paragraphs 184–85. NB. There was a breach of Article 6 because his trial in Turkey was not tried by an independent and impartial tribunal and that there was no fair trial. For instance, where Pakistan deported a suspect to the United States, he received the death penalty, something that might well have been prohibited in an extradition treaty speciﬁcally designed to return transnational fugitive offenders. The Guardian p. 17, 16 NOV 2002. BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE, vol. V, sec. 3–5. Cited in MURPHY, supra n207, at p. 72. MURPHY, supra n207, at p. 93. Supra n211, at pp. 326–27.

346

Chapter 6

justiﬁed where extradition does not exist, to utilize informal processes so as to avoid the guarantees for the fugitive that extradition law introduces to the process ought to vitiate jurisdiction. Equally, a State planning to use deportation where extradition is unavailable should obtain effective and veriﬁable diplomatic assurances as to the treatment the transnational fugitive offender will receive if deported. The better solution, of course, would be for States to provide in their domestic extradition legislation for an ad hoc process that incorporated all the guarantees ordinarily found in international human rights law and extradition law.

Chapter 7 Responding to War Crimes, Crimes Against Humanity and Genocide1 “There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace.” Koﬁ Annan, United Nations Secretary-General, addressing the judges of the International Criminal Court at their inauguration, 11 March 2003, Press Release SG/SM/8628 L/3027

Those who commit war crimes, crimes against humanity and genocide are sui generis. Their crimes are so heinous that all means, some more lawful than others, have been used to ensure that they are prosecuted. This chapter reviews current practice and policy, and makes recommendations for future developments in the

1

This chapter does not cover the extradition of prisoners of war: see United States v Noriega 746 F.Supp 1506 at 1525–29 (1990), 808 F.Supp 791 (1992); 117 F.3d 1206 (1997); cert.den 523 US 1060 (1998). See also, Meyer, The Astiz Affair, 32 INT’L & COMP. LQ 948 (1983). Astiz was subsequently requested by Italy and Sweden after the end of the Falklands/Malvinas conﬂict – The Guardian p. 12, 3 JUL 2001 and p. 14, 2 DEC 2001, respectively. Spain sought the extradition of an inmate at Guantanamo Bay, something that would not be possible if they were accepted to be POWs – The Guardian p. 18, 13 FEB 2004.

348

Chapter 7

law pertaining to transnational fugitive offenders who commit crimes associated with armed conﬂicts.2 It is almost forty years since the end of World War II, yet reports in newspapers even now regularly tell of requests for the return of war criminals from that era.3 However, a uniform approach towards alleged war criminals, from past and current conﬂicts, is still lacking, although there is an increasingly discernible international policy of prosecuting war criminals whenever possible. The war in the former Yugoslavia and the genocide in Rwanda led the Security Council, acting under Chapter VII of the United Nations Charter, to create the two ad hoc tribunals.4 Their establishment paved the way for the transformation of the entire approach to crimes committed in time of armed conﬂict and for the development of a series of international and internationalized courts5 and tribunals dealing with individual criminal responsibility for war crimes, crimes against humanity and genocide. The Rome Statute of the International Criminal Court,6 promulgated in 1998 and in force 1 July 2002,7 provides a forum for prosecuting the most serious offenders who commit such crimes, subject to its jurisdictional limitations. Despite the creation of the generic International Criminal Court in 1998, new special courts for speciﬁc conﬂicts have still been established, either because the ICC lacked jurisdiction due

2

3

4

5

6

7

It will be argued below that crimes against humanity, which initially had to be committed as part of an armed conﬂict, need no longer be so associated. Genocide has never needed such a connection in law. See (i) The Guardian p. 15, 15 JUN 1995, on Eric Priebke’s extradition from Argentina to Italy. (ii) BBC News website 205797.stm, 1998/11/01 21:44:00, on Nada Sakic’s extradition from Argentina to Croatia; on Argentina, see also The Guardian p. 19, 18 NOV 1998. (iii) The Guardian p. 2, 27 AUG 1999, on the French request for Alois Brunner; see also his conviction in absentia, BBC News website 1198037.stm, 2001/03/02 12:47:00. (iv) BBC News website 1356708.stm, 2001/05/29 21:30:00, on Australia granting Latvia’s request for the extradition of Konrad Kalejs; he died in Australia before the surrender took place – The Guardian p. 14, 10 NOV 2001. ‘Return’ will be used throughout this chapter to include all the various methods of rendition: extradition, transfer, abduction or expulsion/deportation. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.NSC Res.827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993); the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR), is to be found in UNSC Res.935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994). ROMANO, NOLLKAEMPER AND KLEFFNER, INTERNATIONALIZED CRIMINAL COURTS (2004). Done at Rome, 17 July 1998, 37 INT.LEG.MAT.999 (1998) – as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999; http://www.icc-cpi.int/home.html&l=en. See CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002. There were 100 parties on 1 January 2006 – see http://www.icc-cpi.int/home.html&l=en.

Responding to War Crimes, Crimes Against Humanity and Genocide

349

to the situation occurring before 1 July 2002, or because the situation occurred in a State not party to the Rome Statute, or because the accused was not a national of a State party. The United Nations and the government of Sierra Leone instituted the Special Court for Sierra Leone to deal with the war in that region;8 it is a mixed or hybrid tribunal. In Cambodia, the government established Extraordinary Chambers with United Nations agreement to prosecute members of the Khmer Rouge for crimes from the 1970s. The Extraordinary Chambers are part of the domestic legal system, but international judges sit alongside Cambodian judges. A similar system has been set up in Timor Leste and Kosovo, special cases because of their former and continuing status, respectively, as United Nations transitional administrations. Finally, the Iraqi Special Tribunal for Crimes Against Humanity was established on 10 December 2003 by the Iraqi Governing Council.9 Discussed below, all of these courts and tribunals reﬂect the growing view that impunity should not be possible for such heinous crimes. The ﬁrst task must be to distinguish war crimes, crimes against humanity and genocide. Once the terms are understood, it will be possible to review the United Nations’ measures designed to provide no safe-haven for fugitive war criminals and to consider the national approaches towards rendition.10 Finally, the problem of what is the best forum for trial of such criminals will be examined. Before undertaking this analysis of the responses in criminal law, though, it is worth brieﬂy noting the increased use of civil remedies in such situations by victims in the States where they have settled.11 Civil remedies also include those cases where the State revokes a person’s citizenship because of his previous criminality that was not disclosed at the time of his naturalization.12 More directly, in the United States the Alien Tort Claims Act provides federal jurisdiction for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty

8

9

10

11 12

UNSC Res.1315 (2000) of 14 August 2000. 1. Requests the Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with this resolution, and expresses its readiness to take further steps expeditiously upon receiving and reviewing the report of the Secretary-General . . .; See also, (i) the Secretary-General’s report, S/2000/915, 4 October 2000; (ii) Supplement to the Sierra Leone Gazette Vol. CXXX. No II, 7 March 2002, The Special Court Agreement, 2002, Ratiﬁcation Act, 2002. The Governing Council was appointed by Coalition Provisional Authority Administrator L. Paul Bremer on July 13, 2003. See also, UNSC Res.1500 (2003) and 1511 (2003). See Garcia-Mora, Crimes against humanity and the principle of non-extradition of political offenders, 62 MICH.L REV.927 (1964); Green, Political Offences, War Crimes and Extradition, 11 INT’L & COMP. LQ 329 (1962); Green, War Crimes, Extradition and Command Responsibility, 14 IS.YB.H.R.17 (1984); Neumann, Neutral States and the Extradition of War Criminals, 45 AM.J INT’L L 495, (1951); O’Higgins, Disguised Extradition – The Soblen Case, 27 MOD.L REV.521 (1964); FALK, KOLKO, LIFTON, CRIMES OF WAR, (1971). Viz. Kadic v KaradÓzi,c, 70 F.3d 232 (1995); noted in 90 AM.J INT’L L 658 (1996). See United States v Demjanjuk 367 F.3d 623 (2004); cert.den. Demjanjuk v United States, 160 L.Ed. 2d 341, 125 S.Ct. 429 (2004).

350

Chapter 7

of the United States” (28 USC §1350). In John Doe v UNOCAL,13 villagers sued UNOCAL for its participation in crimes against humanity and gross human rights violations by the government in Myanmar. Indonesian Major General Johny Lumintang was also the object of a tort claim for killings in East Timor when it was still under Indonesian occupation prior to the United Nations transitional administration.14 The genocide in Rwanda provoked the successful claim in the case of Mushikiwabo et al. v Barayagwiza.15 Outside the United States, claims have been brought in British courts for the actions of the British military overseas, either as a tort claim or under the Human Rights Act 1998. As such, it would be limited to complaints against British authorities.16 However, in Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Sudiya and another; Mitchell and others v Al-Dali and others,17 the Court of Appeal held that while State immunity prevented actions against another sovereign State in British courts, ofﬁcials of that other State carrying out torture could not claim immunity ratione materiae in either criminal or civil cases. If the United Nations Convention Against Torture18 can be used in this manner to found a claim, it may be that other treaties pertaining to effective remedies for crimes could provide grounds for cases arising out of crimes against humanity or war crimes.19 In The Netherlands, a survivor of Srebrenica has started an action against the Dutch government on the basis that Dutch troops were in the town to provide protection against the Bosnian Serbs.20 According to Gattini,21 an individual can bring a claim against another sovereign State in Italian courts for deportation to slave labour during World War II. As such,

13 14

15

16

17 18

19

20 21

395 F.3d 932 (2002); 395 F.3d 978 (2003). A friendly settlement was eventually reached. Jane Doe v Lumintang US Court of Appeals (DC Circ), 11 July 2005, 2005 U.S. App. LEXIS 13962. El Salvadoran generals are being sued, as well – The Guardian p. 14, 5 JUN 2002. 107 INT’L L REP.457 (1996). The fact that the defendant was in the United States to attend a United Nations meeting was irrelevant, especially since Rwanda waived immunity. See Bici and another v Ministry of Defence, QBD, [2004] EWHC 786 (QB), [2004] All ER (D) 137 (Apr). R (on the application of Al-Skeini and others) v Secretary of State for Defence, [2005] EWCA Civ 1609, [2005] All ER (D) 337 (Dec). [2005] QB 699 per Mance LJ at paragraphs 69–81 and 92–98. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 23 INT.LEG.MAT.1027 (1984) & 24 INT.LEG.MAT.535 (1985). The decision was also founded on the right in Article 6 of the ECHR (ETS 5, 1950) to access to the courts to ensure their civil obligations are met. The Guardian p. 16, 10 JUN 2005. War Crimes and State Immunity in the Ferrini Decision, 3 JICJ 224 (2005), commenting on Ferrini v Federal Republic of Germany (Cass. Sez. Un. 5044/04), reproduced in the original Italian text in 87 Rivista di diritto internazionale (2004) 539.

Responding to War Crimes, Crimes Against Humanity and Genocide

351

1. Distinguishing war crimes, crimes against humanity and genocide22 It made genocide, deﬁned in Article 2, or conspiracy, incitement, or attempt to commit, or complicity in genocide, an international crime. This chapter is examining responses to such crimes. Nevertheless, without some brief overview of the crimes, a true perception of the remit of universal jurisdiction and of the competence of the various international tribunals and courts. The issue of the deﬁnition of crimes for the purposes of the various international criminal tribunals and for the purposes of universal jurisdiction23 needs to be addressed. According to In re List:24 An international crime is . . . an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances.

As such, whether it is prosecuted before an international tribunal or a domestic court on the basis of universal jurisdiction, the elements of the crime should be similar, lest a narrow deﬁnition under one system detracts from the scope of the other. Genocide is not truly a ‘war crime’. There is no requirement in its deﬁnition that there be an ongoing armed conﬂict. It was established by the Genocide Convention, 1948,25 which was the ﬁrst such positive move to respond to such international crimes. It made genocide, deﬁned in Article 2, or conspiracy, incitement, or attempt to commit, or complicity in genocide, an international crime. Article 2: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

22 23

24 25

See generally, CASSESE, INTERNATIONAL CRIMINAL LAW (2003). See generally, Randall, Universal Jurisdiction under International Law, 66 TEX.L REV.785 (1988). Case No. 215, United States Military Tribunal at Nuremberg, 15 Ann.Dig.632 at 636 (1948). 78 UNTS 277 (1951). The term genocide was coined by Lemkin in his 1944 book Axis Rule in Occupied Europe. It took 21 years for the United Kingdom to pass enabling legislation and the United States only adhered to it in 1986. See Le Blanc, The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding, 78 AM.J INT’L L 369 (1984). See generally, SCHABAS, GENOCIDE IN INTERNATIONAL LAW (2000); Verdrame, The Genocide Deﬁnition in the Jurisprudence of the Ad Hoc Tribunals, 49 INT’L & COMP.LQ 578 (2000); see also, the various authors in Vol. 5:3 ICLR 311–500 (2005).

352

Chapter 7 (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inﬂicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Thus, those who are involved in genocide, whether in times of peace or during a war,26 are not to escape punishment and are to be refused a safe haven. Unfortunately, its good intentions have not been fulﬁlled in practice, partly because very few fugitives are prosecuted for genocide per se, but rather for crimes against humanity or war crimes which do not come within the provisions of the 1948 Convention,27 and partly because several States did not become party to it. However, the ICTY and, even more so, the ICTR have expanded the understanding of the international community with respect to genocide.28 The 1948 deﬁnition has been interpreted since the mid-1990s in a much broader and more inclusive fashion. The ICTR has done much to bring sexual crimes within the ambit of genocide. In Prosecutor v Akayesu,29 the accused was a bourgmestre in Rwanda who participated in genocide, in part based on sexual crimes against Tutsi women. 731. With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the speciﬁc intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute inﬂiction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways [to] inﬂict harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisﬁed that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, speciﬁcally targeting Tutsi women and speciﬁcally contributing to their destruction and to the destruction of the Tutsi group as a whole. (footnote omitted)

26 27

28

29

Genocide is one type of crime against humanity; see Donnewille in Barbie, infra n56, at 147. Viz Klaus Barbie, infra n56; R and Federal Republic of Germany v Rauca, (1983), 34 C.R.(3d) 97, 145 DLR (3d) 638 (Ont CA). Cf. Eichmann, 36 INT’L L REP.5. Cf. A German court sentenced a Serb, Nikola Jorgic, to life imprisonment for genocide for leading a death squad that murdered Bosnian Muslims and perpetrating ethnic cleansing – The Guardian p. 15, 27 SEP 1997. See Kim, The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004, 5 ICLR 431 (2005); Meernik, Proving and Punishing Genocide at the ICTR, 4 ICLR 65 (2004). Case No.ICTR-96–4–T, 2 September 1998, at paragraphs 500–09 and 731–34.

Responding to War Crimes, Crimes Against Humanity and Genocide

353

The ICTY has had to consider whether ethnic cleansing, the forcible displacement of a group, amounts to genocide. In Krsti,c,30 the ICTY held that ethnic cleansing could amount to genocide as long as there was sufﬁcient evidence that the accused intended to destroy the group in whole or in part. 30. The Defence argues that the [Bosnian Serb forces] decision to transfer, rather than to kill, the women and children of Srebrenica in their custody undermines the ﬁnding of genocidal intent. This conduct, the Defence submits, is inconsistent with the indiscriminate approach that has characterized all previously recognized instances of modern genocide. 31. The decision by Bosnian Serb forces to transfer the women, children and elderly within their control to other areas of Muslim-controlled Bosnia could be consistent with the Defence argument. This evidence, however, is also susceptible of an alternative interpretation. As the Trial Chamber explained, forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself.31

The decision in Krsti,c was based on the massacre of the seven to eight thousand Bosnian Muslim men, but the ethnic cleansing of the women and children with the appropriate intent could also be genocide. That decision has to be read in the light of Brdjanin.32 The Trial Chamber was less convinced that an intent to destroy could be found in an intent to forcibly transfer. 978. Moreover, the Prosecution submits that “had the Accused and other participants in the joint criminal enterprise intended solely to displace the Muslim and Croat population from the [Autonomous Region of Krajina], they clearly could have done so without overseeing the killing, imprisonment, torture and rape of Muslims and Croats on such a vast scale and in such systematic ways”. On the contrary, as stated, the scale of the acts enumerated in Article 4(2)(a) to (c) does not allow the Trial Chamber to legitimately come to the conclusion in favour of the existence of genocidal intent, particularly when viewed in light of the number of Bosnian Muslims and Bosnian Croats forcibly displaced from the ARK. The difference between the two is too pronounced, particularly in light of the fact that during much of the period relevant to the Indictment, and certainly as from summer 1992, the Bosnian Serb forces controlled the territory of the ARK, as shown by the fact that they were capable of mustering the logistical resources to forcibly displace tens of thousands of Bosnian Muslims and Bosnian Croats, resources which, had such been the intent, could have been employed in the destruction of all Bosnian Muslims and Bosnian Croats of the ARK. (footnotes omitted)

30 31 32

Prosecutor v Krsti,c, Case No.IT-98–33–A, 19 April 2004. Footnotes omitted. Cf. Prosecutor v Jelisi,c Case No.IT-95–10–T, 14 December 1999. Prosecutor v Brdjanin Case No.IT-99–36–T, 1 September 2004.

354

Chapter 7

The position has been complicated by the later decision of the Trial Chamber in Blagojeviœ.33 The Trial Chamber ﬁnds that the term “destroy” in the genocide deﬁnition can encompass the forcible transfer of a population. The Trial Chamber recalls that the speciﬁc intent for the crime of genocide must be to destroy the group as a separate and distinct entity. . . .34 While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group. A group is comprised of its individuals, but also of its history, traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber ﬁnds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members. In such cases the Trial Chamber ﬁnds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was.

While the decisions are reconcilable, it is clear that ethnic cleansing in and of itself will not amount to genocide without other supporting circumstances of an intent to destroy the group.35 The ICTY and ICTR have also helped to expand upon the meaning of “group”36 and the phrase “in whole or in part”. In Akayesu,37 the ICTR held that genocide targeted “only ‘stable’ groups, constituted in a permanent fashion and membership of

33 34

35

36 37

Prosecutor v Blagojeviœ and Joki,c Case No.IT-02–60–T, 17 January 2005, at paragraphs 657–66. Author’s footnote. Only Article 2(c) and (d) of the Genocide Convention requires an intent to cause the physical destruction of the group in whole or in part. The Trial Chamber in Brdjanin were prepared to hold that since those in the camps were men of military age, the intent of the accused might have been to remove a security threat, not genocide. 979. Finally, the victims of the underlying acts in Article 4(2)(a) to (c), particularly in camps and detention facilities, were predominantly, although not only, military-aged men. This additional factor could militate further against the conclusion that the existence of genocidal intent is the only reasonable inference that may be drawn from the evidence. There is an alternative explanation for the inﬂiction of these acts on military-aged men, and that is that the goal was rather to eliminate any perceived threat to the implementation of the Strategic Plan in the ARK and beyond. Security for the Bosnian Serbs seems to have been the paramount interest. In the words of one witness: “the aim was to reduce the threat to the detainer, the detainer’s community, and anyone? . . . . who looked as if they would ﬁght, once sent to the other side, would be eligible for detention”. (footnote omitted) Cf. Niyetegeka v The Prosecutor Case No.ICTR-96–14–A, 9 July 2004, at paragraph 53. In other words, the term “as such” . . . does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting “as such” to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership. See also, Tournaye, Genocidal Intent before the ICTY, 52 INT’L & COMP.LQ 447 (2003). See also, Amann, Group Mentality, Expressivism, and Genocide, 2 ICLR 93 (2002). Case No. ICTR-96–4–T, 2 September 1998, at paragraphs 511–16.

Responding to War Crimes, Crimes Against Humanity and Genocide

355

which is determined by birth”. Further, an ethnic group is one whose members share a common language or culture. More importantly, the ICTR went on to state that the Genocide Convention was intended to protect not just the four types of group listed in Article 2, but “any stable and permanent group”. Moreover, whether those targeted were members of the group is partly a question for the perpetrator – did he or she see them as members of the group that were to be destroyed?38 In Krsti,c,39 the Appeals Chamber dealt with the question of an accused who did not intend to destroy the whole of the group, but only part thereof. It was accepted as common ground at paragraph 8 that it had to be a substantial part. However, that begs the question of how one determines what is substantial in these matters. It selfevidently includes the situation where a large proportion, “a considerable number”,40 of the whole group were intended to be destroyed. However, in Sikirica,41 the ICTY had been prepared to take into account whether those targeted were leaders of the group in deciding if there had been an intent to destroy a substantial part of the group. 65. . . . This part of the deﬁnition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this deﬁnition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a signiﬁcant section of the group, such as its leadership. While the Chamber does not reject that aspect of the deﬁnition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference.

The Appeals Chamber in Krsti,c,42 however, reverted to a quantitative test of whether the part was substantial: “Properly understood, this factor [leadership] is only one of several which may indicate whether the substantiality requirement is 38

39 40

41

42

And in carrying out the analysis as to whether the accused had a genocidal intent, the tribunal is forced to categorize the victims in the same way that perpetrators did – see Kim, The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004, 5 ICLR 431 at 440 (2005). Cf. Fédération Nationale des Déportés et Internés Résistants et Patriotes et al. v Barbie, 78 INT’L L REP.125 (1985), at 146–47 per Advocate-General Donnewille: [to] accept a distinction between the victims would be to play the game of the perpetrator of the crime in the arbitrary discrimination which he operated in relation to the human race. . . . It matters little . . . faced with an orchestrated and collective programme of action which denies civilisation as such, whether the victim was a member of a group, whether or not he was ‘useful for the war’ to his enemies, whether he espoused a particular political persuasion, or even whether he belonged to a particular race. . . . Prosecutor v Krsti,c, Case No.IT-98–33–A, 19 April 2004. See Prosecutor v Kayishema and Ruzindana, Case No.ICTR-95–1–T, 21 May 1999, at paragraphs 96–97. Prosecutor v Sikirica, KolundÓzija and Do·en Case No.IT-95–8–T, 3 September 2001, paragraph 65. Prosecutor v Krsti,c, Case No.IT-98–33–A, 19 April 2004, at fn. 22.

356

Chapter 7

satisﬁed”. It is not an independent factor that can satisfy the requirement on its own if there is no intention to destroy a considerable number of the group. Turning to war crimes and crimes against humanity, Article 6 of the Charter of the International Military Tribunal at Nuremberg covered three separate offences.43 (a) Crimes against Peace: namely, planning, preparation initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing: (b) War Crimes: namely, violations of the laws and customs of war. Such violations shall include, but shall not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justiﬁed by military necessity: (c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

It is generally believed that Crimes against Peace can only be committed by high ranking members of either the military or the executive of the State in starting an armed conﬂict.44 Article 5 of the Rome Statute,45 includes the crime of aggression, but as Article 5.2 explains, no deﬁnition of this crime could be agreed in Rome in 1998. As such, it is to be discussed again in time for the Review Conference due to be convened in 2009.46 Given the lack of a deﬁnition, the focus of this chapter will be on war crimes, stricto sensu, under Article 6(b) and crimes against humanity, as established by Article 6(c).47 War criminals, though, will be taken to include those guilty of the types of crimes set out in either Article 6(b) or 6(c), unless otherwise stated.

43

44

45

46 47

Cited in the International Military Tribunal at Nuremberg’s Judgement, which may be found in vol. XXII, pp. 413–14, of TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (1948). See also 41 AM.J INT’L L 172 (1947). See Dinstein, ‘The Distinctions between War Crimes and Crimes Against Peace’, in DINSTEIN & TABORY, WAR CRIMES IN INTERNATIONAL LAW, 1996, at p. 1; Rosenne, ‘War Crimes and State Responsibility’, id., at p. 65. Done at Rome, 17 July 1998, 37 INT.LEG.MAT.999 (1998) – as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999; http://www.icc-cpi.int/home.html&l=en. See Article 123 (and Article 121) of the Rome Statute. On crimes against humanity, see Bassiouni, Crimes Against Humanity: The Need for a Specialized Convention, 31 COLUM.J TRANSNAT’L L 457 (1994); CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW, 1992.

Responding to War Crimes, Crimes Against Humanity and Genocide

357

War crimes under Article 6(b) and subsequent statutes of international criminal tribunals must have been committed during an armed conﬂict.48 The Geneva Conventions of 1949 and Protocol I of 197749 provide for individual criminal responsibility for grave breaches. Grave breaches are, however, limited to international armed conﬂicts and do not extend to non-international armed conﬂicts. Nevertheless, it has always been the case that there was individual criminal responsibility for other breaches of the laws of armed conﬂict in international armed conﬂicts. The ad hoc tribunals and subsequently the Rome Statute have conﬁrmed, though, that individual criminal responsibility can also attach to breaches of Common Article 3 and provisions of Protocol II of 1977 in non-international armed conﬂicts.50 [These] factors conﬁrm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conﬂict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.

Crimes against humanity, however, were not constrained as to the setting, although the practice of the International Military Tribunal at Nuremberg51 was to require an armed conﬂict.52 The argument in favour of this understanding by the IMT is that Article 6(c) has to be read in the context of paragraphs (a) and (b) that both require there to be an armed conﬂict. The fact that no international convention on crimes against humanity was ever concluded has meant that the topic has developed through custom and there is no universally accepted deﬁnition.53 Fenrick54 distinguished war crimes from crimes against humanity in 1989 as follows:55

48

49 50

51 52

53

54 55

Hampson, ‘Liability for War Crimes’, in ROWE, THE GULF WAR 1990–91 IN INTERNATIONAL AND ENGLISH LAW, 1993, at p. 241. 75 UNTS 31–417 (1950); and, 1125 UNTS 3–608 (1979), 16 INT.LEG.MAT.1391 (1977). Protocol II did not provide for individual criminal responsibility for any breach of its provisions – Cf. Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No.IT-94–1–AR72 (1995) at paragraph 134. See also, HENCKAERTS AND DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005). They can, therefore, overlap with both genocide and war crimes. See the French Judge on the IMT, Donnedieu de Varbres, Le Jugement de Nuremberg et le Principe de Légalité des Délits et des Peines, 27 REV.DE DROIT PENAL ET DE CRIM. (1946–47). For a comprehensive review as at 2002, see Ambos and Wirth, The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000, 13 CRIM.LF.1 (2002). The Prosecution of War Criminals in Canada, 12 DALHOUSIE LJ 256 at pp. 266 et seq. (1989). On the overlap between crimes against humanity and genocide, see Palombino, Should Genocide Subsume Crimes Against Humanity?: Some Remarks in the Light of the Krsti,c Appeal Judgment, 3 JICJ 778 (2005).

358

Chapter 7 (a) war crimes are offences committed by persons linked to one side to an armed conﬂict against neutral citizens or citizens of a belligerent on the other side, while the victims of crimes against humanity may be citizens of any country, (b) crimes against humanity must be carried out in pursuance of a policy of persecution on political, racial or religious grounds, while no such policy is required for war crimes, and (c) to be a war crime, an act must have been committed during a war or an international armed conﬂict.

In the Barbie case,56 the distinction had been of importance because of questions about the scope of the statute of limitations with respect to war crimes and crimes against humanity.57 Barbie was accused in the initial indictment with crimes against humanity committed against Jews and members of the French Resistance in the Lyon area. However, the Examining Magistrate of Lyon and the Lyon Cour d’Appel struck out the charges with respect to members of the Resistance because crimes against humanity under French law required that the accused committed the offence as part of a policy based on persecuting the victims on account of their race or religion; as such, only the charges relating to persecution of Jews by Barbie would have qualiﬁed as crimes against humanity. On appeal, the Cour de Cassation reversed the earlier rulings. The following acts constitute crimes against humanity . . . which are not subject to statutory limitation of the right of prosecution, even if they are crimes which can also be classiﬁed as war crimes: . . . inhumane acts and persecution committed in a systematic manner in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy, whatever the form of their opposition. .... [The Court considers] however that the judgment under appeal states that the ‘heinous’ crimes committed systematically or collectively against persons who were members or could have been members of the Resistance were presented, by those in whose name they were perpetrated, as justiﬁed politically by the national socialist ideology. Neither the driving force which motivated the victims, nor their possible membership of the Resistance, excludes the possibility that the accused acted with the element of intent necessary for the commission of crimes against humanity.58

Advocate-General Donnewille went even further in his submissions to the Cour de Cassation.59 He was of the opinion that,

56

57

58 59

Fédération Nationale des Déportés et Internés Résistants et Patriotes et al. v Barbie, 78 INT’L L REP.125 (1985). See also Chile’s attempt to impose a six month deadline on an ongoing investigation of crimes against humanity – The Guardian p. 12, 31 JAN 2005. Supra n56, at 137 and 140. Supra n56, at 146–47. JANACZEK, NUREMBERG JUDGMENT IN LIGHT OF INTERNATIONAL LAW, at p. 97 (1949), argues that crimes against humanity were created by the Charter as the only way of punishing some Nazis for certain crimes.

Responding to War Crimes, Crimes Against Humanity and Genocide

359

[to] accept a distinction between the victims would be to play the game of the perpetrator of the crime in the arbitrary discrimination which he operated in relation to the human race. . . . It matters little . . . faced with an orchestrated and collective programme of action which denies civilisation as such, whether the victim was a member of a group, whether or not he was ‘useful for the war’ to his enemies, whether he espoused a particular political persuasion, or even whether he belonged to a particular race. . . .

Donnewille argued that crimes against humanity should be deﬁned by reference to the fate of the victim rather than the motivation of the accused. It was possible to interpret crimes against humanity under Article 6(c) of the Nuremberg Charter so that only “persecution” had to be motivated by reason of the victim’s race, religion or political opinion and that “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population” could be crimes against humanity without any particular motivation vis à vis the victims. The Statutes of the ICTY, ICTR and the International Criminal Court, however, did not clarify the situation. Although the Security Council drafted the statutes for both of the ad hoc tribunals at the beginning of the 1990s, there are a surprising number of differences; the fact that Article 7 of the Rome Statute differs from both is not as surprising, but it does mean that there is still some vagueness as to the precise deﬁnition of crimes against humanity.60 The ICTY requires that the crimes against humanity be part of an armed conﬂict whereas the ICTR and International Criminal Court demand that they be widespread or systematic instead; persecution is an essential element of all crimes against humanity before the ICTR, while it is a freestanding crime at the ICTY and International Criminal Court, although it must be charged alongside another Rome Statute crime before the latter; the only aspect on which all Statutes are agreed is that there must be an attack on a civilian population.61 Civilian population includes “individuals who, at one particular time, carried out acts of resistance”.62 Beyond the Statute of the ICTY, 60

61

62

As to the scope of crimes against humanity, there are broad and narrow interpretations. Compare Obokata, Trafﬁcking of Human Beings as a Crime Against Humanity: Some Implications for the International Legal System, 54 INT’L & COMP.LQ 445 (2005), with Schabas, Is Terrorism a Crime Against Humanity?, 8 INT’L PEACEKEEPING: YB.PEACE OPS.255 (2004). See Prosecutor v Kunarac, Kova,c, Vukovi,c, Case No.IT-96–23–T and IT-96–23/1–T, 22 February 2001. 410. The expression “an attack directed against any civilian population” is commonly regarded as encompassing the following ﬁve sub-elements: (i) There must be an attack. (ii) The acts of the perpetrator must be part of the attack. (iii) The attack must be “directed against any civilian population”. (iv) The attack must be “widespread or systematic”. (v) The perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack (footnotes omitted). Afﬁrmed by Appeals Chamber, Case No.IT-96–23–A and IT-96–23/1–A, 12 June 2002, at paragraphs 85–89. The Appeals Chamber went on to conﬁrm that the use of the word “population” did not mean the entire population – paragraphs 90 et seq. Prosecutor v Mrk·i,c and Others, Case IT-95–13–R61, Review of the Indictment Pursuant to Rule

360

Chapter 7

crimes against humanity have to be widespread or systematic, and even before the ICTY this requirement has been read in. Nevertheless, crimes against humanity can consist of a single act if that is part of a speciﬁc context that includes a widespread or systematic attack.63 Given that while crimes against humanity are not limited to time of armed conﬂict, they can certainly be perpetrated during an armed conﬂict,64 it has been discussed whether they should become the default charge for the purposes of international criminal law,65 as though they are more serious crimes.66 The requirement that victims be civilians presents an obvious obstacle, but the question shows how far crimes against humanity have developed since 1945. The IMT at Nuremberg conﬁned crimes against humanity to time of armed conﬂict, but since then they have been expanded to embody the overarching international crime. War crimes were created by the military to help regulate the permitted practices in time of armed conﬂict. Genocide is a very speciﬁc aspect of crimes against humanity that has now assumed an overwhelming and independent signiﬁcance, but it is still very difﬁcult to prove. Crimes against humanity represent the way that the international community can respond to the most heinous excesses of international criminal law. Nevertheless, while genocide might be the crime of crimes,67 there is no distinction in international criminal law between the seriousness of crimes against humanity and war crimes.68 After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber ﬁnds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being ﬁxed by reference to the circumstances of the case. The position is similar under the Statute of the International Criminal Court, Article 8(1) of the Statute, in the opinion of the Appeals Chamber, not importing a difference.

63

64

65

66

67 68

61 of the Rules of Procedure and Evidence, 3 Apr 1996, paragraph 29; 108 INT’L L REP.53 at 63–66. See Prosecutor v Kunarac, Kova,c, Vukovi,c, Appeals Chamber, Case No.IT-96–23–A and IT96–23/1–A, 12 June 2002, at paragraph 96; Prosecutor v Bla·kic Case No.IT-95–14–A, 29 July 2004, at paragraph 101; Prosecutor v Kordi,c and Œerkez Case No.IT-95–14/2–A, 17 December 2004, at paragraph 94. The Appeals Chamber underscores that the acts of the accused need only be a part of this attack, and all other conditions being met, a single or limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be isolated or random. For instance, torture can constitute a crime against humanity and a war crime – Prosecutor v FurundÌzija, Case No.IT-95–17/1–A, 21 July 2000, paragraphs 109 et seq. Fenrick, Should Crimes Against Humanity Replace War Crimes?, 37 COLUMBIA J. TRANS. L 767 (1999). Carcano, Sentencing and the Gravity of the Offence in International Criminal Law, 51 INT’L & COMP.LQ.583 (2002). Prosecutor v Akayesu, Case No.ICTR-96–4–T, 2 September 1998, at paragraph 16. Prosecutor v Tadi,c Case No.IT-94–1–A and IT-94–1–A bis, 26 January 2000, at paragraph 69.

Responding to War Crimes, Crimes Against Humanity and Genocide

361

2. Responding through International Conventions The United Nations has taken several steps to ensure that war criminals are eventually punished and exhorts its members to, take measures . . ., to arrest such persons and extradite them to the countries where they had committed war crimes or crimes against humanity. . . .69

As already noted, the Genocide Convention of 194870 made the various crimes promulgated therein offences that ought to be tried before a tribunal in the State where they occurred or before an international tribunal. Towards this end, genocide was to be added to the list of extraditable crimes and is designated a non-political offence.71 Thus, as stated above, those who are involved in genocide are not to escape punishment and are to be refused a safe haven. The four Geneva Conventions of 1949,72 promoted under the auspices of the International Committee of the Red Cross, all make provision in similar terms for High Contracting Parties to pass legislation giving themselves either jurisdiction over or the power to extradite to the locus delicti, those committing grave breaches of the Conventions.73 The options would appear to be coextensive from the wording of those provisions. Moreover, Articles 88 and 89 of Protocol I to the Geneva Conventions74 provide that States shall afford one another the greatest assistance and co-operation in criminal proceedings to do with grave breaches and special reference is made to extradition to the locus delicti. However, the conventions sponsored by the ICRC leave the question of whether a war crime could be political in character to the domestic law of the High Contracting Parties, unlike the Genocide Convention. In 1968, the United Nations General Assembly adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.75 The aim of the Convention, evident from its title, is to prevent war

69

70

71 72 73 74

75

UNGA Res.2712 (XXV), paragraph 2. Cited in WILLIAMS, INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS, at p. 592 (3rd ed., 1978). Supra n25. See also, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia-Herzegovina v Yugoslavia) [1996] ICJ Rep., General List No. 91, 11 July 1996. Article 7; and see Article 3, too. 75 UNTS 31–417 (1950). Respectively, Articles 49 (I); 50 (II); 129 (III); 146 (IV). 1125 UNTS 3–608 (1979); 16 INT.LEG.MAT.1391 (1977). See also Green, Rewriting the Laws of War: the Geneva Protocols of 1977, International Perspectives, December 1977, pp. 36 et seq.; Schutte, ‘The System of Repression of Breaches of Additional Protocol I’ pp. 177–96 and van den Wijngaert, ‘The Suppression of War Crimes under Additional Protocol I’ pp. 197–206, in DELISSEN & TANJA, HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD, 1991. 8 INT.LEG.MAT.68 (1969); G.A.Res/2391 (XXIII) DEC 9 1968; 65 AM.J INT’L L 476 (1971),

362

Chapter 7

criminals escaping liability merely because of lapse of time and statutory limitation periods. Once again the Convention makes provision (Article III) for the extradition of war criminals by the States party to it.76 In JK v Public Prosecutor,77 it was held that under Dutch law that war crimes as deﬁned in Article 6(b) of the Charter of the International Military Tribunal are not statute barred. However, in one German case, the trial under the active personality principle in Germany itself was time-barred, and the alleged war criminal’s extradition to the State with territorial jurisdiction was prohibited on the ground that nationals cannot be extradited under German law.78 Finally, in 1973, the General Assembly of the United Nations declared the ‘Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity’79 which exhorts signatories to combat war crimes whenever and wherever committed. Each State can try its own nationals, although trial in the locus delicti is preferable; to that end, extradition is once again favoured. The United Nations has been consistent in its aim that all war criminals should be prosecuted and punished and that ordinarily this should be done by the State where the offence occurred. Where that would prove more difﬁcult, especially given that armed conﬂicts are increasingly non-international in character, the United Nations has been prepared to establish ad hoc tribunals, enter into agreements with States to establish hybrid or internationalized courts, and it has done much to foster the creation and establishment of the International Criminal Court. The International Committee of the Red Cross places emphasis on High Contracting Parties having jurisdiction over grave breaches in order that the fugitive war criminal should not escape prosecution, but it makes extradition to the State where the offences occurred an equally valid alternative. Against this background, State practice with regard to the extradition and other means of return of war criminals must be considered, alongside the increasing proliferation of international and internationalized courts and tribunals.

76 77

78 79

Miller; see also the equivalent Council of Europe Convention, 25 JAN 1974, 13 INT.LEG.MAT. 540 (1974); ETS 82. As at 1 January 2006, 49 States had ratiﬁed the Convention. 87 INT’L L REP.93 (Dutch Supreme Court, 1981). See also, Barbie, 100 INT’L L REP.330 at 332–33 (1988). The Guardian p. 11, 2 MAR 1995, concerning Wolfgang Lehnigk-Emden. UNGA A/RES/3074 (XXVIII) 3 December 1973.

Responding to War Crimes, Crimes Against Humanity and Genocide

363

3. Extradition and war crimes, crimes against humanity and genocide Although war criminals ought to be prosecuted in the locus delicti, the usual rules concerning extradition procedures still have to be met. Thus, in In re Rukavina80 the Court of Appeal at Rome refused extradition to Yugoslavia where the identity of the accused was not proven. The 1959 United States case of Artukovic81 was decided partly on the basis that the Yugoslav government had failed to provide sufﬁcient evidence that Artukovic had perpetrated the alleged war crimes.82 The United Kingdom refused extradition to Russia because the killing of combatants in time of armed conﬂict is not murder so there could be no extradition crime.83 Austria refused the extradition of Wilhelm Schubernig to Italy where he was wanted in connection with the execution of 335 people during World War II due to his age and frailty.84 Germany refused the extradition of a member of the SS who was a Dutch national at the time, but who had become a naturalised German after 1945, on grounds of nationality.85 Maybe less correctly, Germany refused to extradite one of its own nationals where it could not prosecute under its statute of limitations.86 Furthermore, human rights guarantees against extradition apply equally to war crimes.87 Finally, even if the fugitive is extradited, the principle of speciality still applies to his trial in the requesting State.88 Thus, the alleged war criminal could only be prosecuted for those crimes for which he was extradited. However, extradition requests have also been successfully challenged on the ground that the offence was allegedly political in character. The political offence exemption, which arose during the nineteenth century, was designed to provide asylum for those who committed crimes while attempting to overthrow a government.89 It may be thought that war is one way of overthrowing a government, but ‘war crimes’ are excesses, unnecessary acts of barbarism; it is generally accepted that for the purposes of international criminal law, not every breach of the laws and customs of war shall be considered a ‘war crime’.90 The International Law Com80 81 82 83

84 85 86 87

88 89 90

16 INT’L L REP.273 (1949), Court of Appeal, Rome, Italy. 170 F.Supp 383 (1959) DCSD Cal. See also, the Zakaev case in Denmark – The Guardian p. 19, 4 DEC 2002. Zakaev case, see Bofaxe 286E, The judgement on the extradition of Zakaev to Russia, 21 January 2004. Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum. See also, The Guardian p. 6, 14 NOV 2003; p. 20, 10 SEP 2004. The Guardian p. 15, 2 APR 2001. The Guardian p. 15, 10 APR 2001. Supra n78. Freedom from torture is absolute. See the Rwandan request for Callixte Mbarushimana from Kosovo, District Court of Gjilan, 11 June 2001 (copy in the hands of the author). In re Issel, 18 INT’L L REP.331 (1950), Eastern Provincial Court, Denmark. See Chapter Five, above. See Fenrick, supra n54, at pp. 264 et seq. Traditionally, any violation of the laws of armed conﬂict

364

Chapter 7

mission’s Report of 1950, Part III of which set out the so-called Nuremberg Principles, attempted a deﬁnition of war crimes and crimes against humanity under Principle VI(b) and (c).91 The term ‘war crime’ should be limited to acts condemned by the common conscience of mankind, by reason of their brutality, inhumanity, or wanton disregard of rights of property unrelated to reasonable military necessity.92

Lauterpacht also believed the term should not include every violation of the Geneva Conventions.93 [War crimes should include] such offences against the law of war as are criminal in the ordinary and accepted sense of fundamental rules of warfare and of general principles of criminal law by reason of their heinousness, their brutality, their ruthless disregard of the sanctity of human life and personality, or their wanton interference with rights of property unrelated to reasonably conceived requirements of military necessity.

It is difﬁcult to see conceive how “ill-treatment”, “deportation”, “slave-labour”, “persecution” or “devastation” not justiﬁed by “military necessity”, for example, could ever amount to an offence of a political character, that is, one which “is incidental to and in furtherance of a political disturbance”.94 Unfortunately, the United States’ analysis of the political offence exemption, for instance, which is theoretically based on Castioni, used to be interpreted such that any offence to do with a political disturbance or uprising would be of a political character, given that there was no personal motive;95 a state of armed conﬂict would constitute such a politi-

91

92 93

94 95

is a war crime, but there is a growing consensus that the measures of substantive and procedural international criminal law should be conﬁned to dealing with those responsible for serious breaches as outlined in the various Statutes. U.N.G.A.O.R., V, Supp. 12 (A/1316) pp. 11–14, 1950. See paragraphs 119–124. Principle VI(b) War Crimes: – Violations of the laws or customs of war which include, . . . murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population . . ., murder, ill-treatment of prisoners of war, . . ., killing of hostages, . . ., or devastation not justiﬁed by military necessity. Principle VI (c) Crimes Against Humanity:- Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace (Principle VI(a)) or any war crime. The Principle is closely modelled Article 6 of the Charter of the International Military Tribunal at Nuremberg; see, supra n43. SHEARER, STARKE’S INTERNATIONAL LAW, (11th ed., 1994) at p. 502. The Law of Nations and the Punishment of War Crimes, 21 BRIT.YB.INT’L L 58 at p. 79 (1944); cited in Fenrick, supra n54, at p. 265. Hawkins J, in In re Castioni [1891] 1 QB 149 at 166. In re Ezeta 62 F.972 (1894).

Responding to War Crimes, Crimes Against Humanity and Genocide

365

cal uprising. Other courts similarly deﬁned a political offence in terms wide enough to include war crimes. The Brazilian case of In re Kahrs96 concerned a Norwegian group accused by Norway of ‘war crimes’: the facts of the case provide no greater detail concerning the offences, other than that the fugitives supported a nationalist organisation and the views it propagated. The Supreme Federal Court of Brazil refused to grant the extradition request because the offence was of a political character or a “crime of opinion”. Having regard to the deﬁnition of war crimes set out in the Nuremberg Principles, above, it is difﬁcult to understand how the court arrived at such a conclusion. It must be hoped that if the full facts of the case were known, the decision would be found to be correct due to an extremely wide Norwegian interpretation of war crimes that goes beyond the grave breaches of the Geneva Conventions to include offences that, in fact, restrict the freedom of speech.97 That is the only basis on which the fugitives could be prosecuted on political grounds for a “crime of opinion” if they were surrendered. However, such a generous view cannot be extended to the original decision in the United States case of Artukovic.98 Artukovic was Minister of the Interior under the Axis controlled Croatian Government of World War II. In that position he had allegedly ordered the death of 1,293 named persons and approximately 30,000 unidentiﬁed persons. The District Court for the Southern District of California held that these were political offences because they were committed at the time of a political uprising, namely the power struggle taking place during World War II in Croatia. The Court of Appeals for the Ninth Circuit upheld the refusal to extradite to Yugoslavia, stating that the principle that war crimes were automatically nonpolitical did not have sufﬁcient force of law.99 Even accepting that stance by the United States’ courts, it is difﬁcult to see how the murder of 30,000 people, in the main civilians, could be part of or incidental to a political disturbance. The Supreme Court granted certiorari, vacated the Court of Appeals decision and remanded the case to the District Court. As stated above, the District Court at this second attempt again decided to refuse extradition, partly because of lack of evidence. Yet, it also found that the offences alleged were of a political character. The 1959 decision in the series of Artukovic cases would seem to be a most disturbing misinterpretation of the exemption. Not only should war crimes be excluded from the ambit of

96 97

98

99

15 INT’L L REP.301 (1948), Supreme Fed.Court of Brazil. Facts are set out at 302. However, it may be that during armed conﬂicts, the media have a responsibility not to incite violations of the laws and customs of war – see HAMPSON, INCITEMENT AND THE MEDIA, Papers in the Theory and Practice of Human Rights, (1993) 140 F.Supp 245 (1956); 247 F.2d 198 (1957); 355 US 393 (1958); 170 F.Supp 383 (1959). NB Artukovic was eventually extradited thirty years later: – 628 F.Supp. 1370 (1985); 784 F.2d 1354 (1986). 247 F.2d 198 at 205 (1957).

366

Chapter 7

political offences,100 but the offences charged here were of a type and were of such a nature as to stretch the scope of the accepted political incidence test beyond rational limits.101 Fortunately, a line of cases has held that war crimes cannot be of a political character and this view appears to be gaining precedence. In re Spiessens102 concerned a request to France by Belgium for a collaborator; collaboration with the enemy is not necessarily a war crime, but if such an offence were to lack a political character, then the more heinous war crimes and crimes against humanity discussed above are obviously mere common crimes. The court held as follows: Moreover, in time of war, in a country occupied by the enemy, collaboration with the latter excludes the idea of a criminal action against the political organisation of the State which characterises the political offence.103

Since war crimes and crimes against humanity will usually be committed during an occupation, the French interpretation would exclude them from the category of political offences;104 the developing trend towards non-international armed conﬂicts will require Spiessens to be read more widely, but the principle remains true. More recently, the Ghanaian Court of Appeal, following the Castioni test, held that war crimes were not of a political character. In The State v Schumann,105 the Federal Republic of Germany requested the extradition of the accused fugitive for murder: the offences had been committed at a mental institution and a concentration camp during the Nazi regime. The court said such offences were not political since the residents of the mental institution and the Jews in the concentration camp had not been opponents of the State who were trying to replace it. Merely carrying out Nazi ideology was insufﬁcient to brand the offences as political. It is odd that while the Swiss political offence test was also relied upon in part,106 the predominance test of Pavan107 was not referred to: Homicide – assassination and murder – is one of the most heinous crimes. It can only be justiﬁed where no other method exists of protecting the ﬁnal rights of humanity.108

100 101

102 103

104

105 106 107 108

See, for example, the Genocide Convention, supra n25. The Ninth Circuit has accepted it erred in the 1959 decision; see, Quinn v Robinson, 783 F.2d 776 at 799 (1986). The Court of Appeals for the Seventh Circuit had accepted the criticisms of Artukovic somewhat earlier in Eain v Wilkes 641 F.2d 504 at 522 (1981). 16 INT’L L REP.275 (1949), Court of Appeal of Nancy, France. Supra n102, at 276. Cf. Residence Prohibition Order Case (No.2), 61 INT’L L REP.433 (Superior Admin.Ct. of Münster, F.R.G., 1968). See, however, the strict French interpretation of the political offence test as laid down in Re Giovanni Gatti, [1947] Ann.Dig.145 at 145–46. 39 INT’L L REP.433 (1966). Noblot, [1927–28] Ann.Dig.350, referred to at 447 of the Schumann judgment. In re Pavan, [1927–28] Ann.Dig.347, the case preceding Noblot in the reports. Supra n107, at 349.

Responding to War Crimes, Crimes Against Humanity and Genocide

367

When the death constitutes a war crime or crime against humanity, murder hardly protects the ﬁnal rights of humanity. The Swiss courts have also held that war crimes and crimes against humanity are outside the ambit of the political offence exemption. In Kroeger v The Swiss Federal Prosecutor’s Ofﬁce,109 the fugitive was requested for a series of mass executions in Poland and the Ukraine. The victims were Jews, communists and inmates of mental institutions, with no distinction being made on grounds of gender, age or helplessness. The accused raised a variety of defences,110 including that the crimes were political in character and that they were legitimate reprisals under the laws of war.111 With respect to the political offence exemption, Kroeger claimed that the murders were carried out as part of Nazi ideology. The Federal Tribunal found against him on the basis that mere political motivation was insufﬁcient to render an offence political in character.112 The offence must have been committed in the course of a struggle for power in the State and must also be in appropriate proportion to the object pursued, in other words suitable to the attainment of that object. The extinction of human life, one of the most reprehensible crimes, can only appear excusable if it constitutes a last resort in the pursuit of a political objective. On the facts, . . . such a situation does not come into question. The accused was acting at a time when the nationalist socialist regime stood at the pinnacle of its power. He acted against helpless women, children and sick persons who could not possibly have threatened German dominion.

The claim that the offences were a legitimate reprisal against a prior Soviet violation of the laws of armed conﬂict also failed on the ground of proportionality. “At the very least, the reprisals must not be obviously disproportionate to the wrong suffered. . . .”.113 Thus, war crimes and crimes against humanity are unlikely under the Swiss interpretation ever to be deemed non-extraditable on the basis of their underlying nature. The Swiss test has due regard to the gravity of the offences charged in assessing the motivation and context of the crime. The Argentinean Supreme Court in the 1968 case of In re Bohne114 reversed a previous practice of providing safe refuge to war criminals.115 It adopted a stance not unlike that of the Swiss court in Kroeger.

109 110

111 112 113 114

115

72 INT’L L REP.606 (Swiss Fed.Trib., 1966). Including, that the offences were statute barred and that he had acted under superior orders. The latter defence was held to be a question for the full trial in the requesting State and so it was not examined on its merits. See generally, KALSHOVEN, BELLIGERENT REPRISALS (1971). Supra n109, at 612–13. Supra n109, at 612–13. 62 AM.J INT’L L 784 at 784 (1968) – translated from Jurisprudencia Argentina, 1966–V, 339 at 340–41. Viz. Eichmann, supra n27.

368

Chapter 7 Extradition will not be denied on grounds of the political or military character of the charges where we are dealing with cruel or immoral acts which clearly shock the conscience of civilised people.

The British position towards war crimes and crimes against humanity and the political offence exemption used to be somewhat ambivalent. As Shearer explains, one reason it took the United Kingdom so long to ratify the Genocide Convention116 was because it attempted to restrict the concept of political offences and the British view of asylum.117 However, the current view can be inferred from the decision of Re Gross, ex parte Treasury Solicitor.118 The case concerned a request for evidence from someone resident in the United Kingdom under s24 of the then Extradition Act 1870, for use in the trial of four former members of the S.S. in the then Federal Republic of Germany. The offences had taken place in Gusen Concentration Camp between 1941 and 1942. Section 24 provided that the witness in the United Kingdom should not have to give evidence if it was for a case where there was a “criminal matter of a political character”. Chapman J held that atrocities committed by the accuseds in the F.R.G. were not of a political character and that the “proceedings” or “matter” were not political even though it had been suggested that the F.R.G. had to prosecute such persons for the purposes of improving international relations after World War II.119 Therefore, it is fair to assume that a war criminal would be extradited from the United Kingdom, the political offence exception being of no avail to the fugitive. In a similar case before the Australian High Court, R v Wilson, ex parte Witness T,120 Murphy J went so far as to hold that war crimes should not be protected by the political offence exemption.121 The United States position has also changed. In Re Ryan,122 the accused was returned to the then West Germany for crimes committed in Poland. In the mid1980s, a U.S. court ordered the extradition of John Demjanjuk to Israel for offences he was alleged to have committed while a concentration camp guard: he had been resident in the United States since 1952.123

116 117

118 119 120 121

122 123

Supra n25. SHEARER, EXTRADITION IN INTERNATIONAL LAW, (1971), at p. 186. See also the statement of the Home Secretary, The Times, 19 JULY 1962, p. 14. [1968] 3 All ER 804 esp. at 807–10. Supra n118, at 810. 86 INT’L L REP.169 at 179–81. See the decision to extradite Kalejs to Latvia – The Guardian p. 10, 30 MAY 2001. He died in prison in Australia before he could be extradited – The Guardian p. 14, 10 NOV 2001. 360 F.Supp 270 (1973); aff’d 478 F.2d 1397n (1973). In re Extradition of Demjanjuk, 612 F.Supp 544 at 571 (1985); Demjanjuk v Petrovsky, 776 F.2d 571 (1985); cert.den.106 S.Ct 1198 (1986). See Reiss, The Extradition of John Demjanjuk: War Crimes, Universality Jurisdiction and the Political Offense Doctrine, 20 CORNELL INT’L LJ 281 (1987); Kremnitzer, ‘The Demjanjuk Case’ in DINSTEIN & TABORY, supra n44, at p. 321. Demjanjuk was eventually acquitted in Israel on appeal. There then followed a farcical situation while he tried to return to the United States which did not want him. On the Israeli trial and

Responding to War Crimes, Crimes Against Humanity and Genocide

369

The murdering of numerous civilians while a guard in a Nazi concentration camp, as part of a larger ‘Final Solution’ to exterminate religious or ethnic groups, is not a crime of a ‘political character’ and is thus not covered by the political offense exception to extradition.

In Atta,124 the District Court held that the political offence exemption as interpreted in the United States had been limited as a result of “international concern over the effect of hostilities on the innocent”. The transnational fugitive offender accused of war crimes must prove the acceptability of his conduct under the rules of the international law of armed conﬂict, including wars of self-determination. Protocol I, Article 48: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conﬂict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.125

Finally, the long standing anomaly of the decision in Artukovic was reversed in 1986 with his extradition to Yugoslavia.126 The court took the opportunity to lay down further guidelines as to the interpretation of the political offence exemption, as it is understood in United States jurisprudence, vis à vis war crimes and crimes against humanity.127 To be a political offence, the offence charged must be “incidental to” or “part of” a political disturbance. The prevailing situation in Croatia during World War II was such a disturbance. However, the court went on to decide that there must in addition be a “rational nexus” between the offences charged and the prevailing disturbance. The focus of the reasoning should be on the context of the crimes and the status of the victims. Reliance was placed on the Supreme Court’s decision in Ornelas v Ruiz,128 where the offences were held not to be political in view of the character of the foray, the mode of attack, the persons killed or captured and the property taken or destroyed. The Court also had regard to the Seventh Circuit’s judgment in Eain v Wilkes,129 where it was held that mere

124

125 126

127 128 129

its aftermath, see The Guardian p. 20, 30 JUL 1993; p. 9, 31 JUL 1993; p. 18, 2 AUG 1993; p. 9, 5 AUG 1993; p. 10, 12 AUG 1993; p. 6, 19 AUG 1993; p. 8, 21 AUG 1993; p. 8, 20 SEP 1993; p. 13, 18 NOV 1993. After returning to the United States, the government there then stripped him of his citizenship with a view to deportation to Ukraine – United States v Demjanjuk 367 F.3d 623 (2004); cert.den. Demjanjuk v United States, 160 L.Ed. 2d 341, 125 S.Ct. 429 (2004). In the Matter of the Extradition of Atta, Ahmad v Wigen 726 F.Supp 389 at 406 (1989); aff’d 910 F.2d 1063 (1990). Supra n74; cited in Atta, supra n124, at 406. The original 1959 decision is dealt with at supra n98. See now, The Matter of the Extradition of Artukovic, 628 F.Supp 1370 (1985); Artukovic v Rison, 784 F.2d 1354 (CA9, 1986). Supra n98, at 1376. 161 US 502 at 511. Supra n101, at 520.

370

Chapter 7

motivation was insufﬁcient. In Artukovic v Rison, the offences had been committed for personal gain, racial or religious hatred and/or impermissible vengeance on disarmed enemy soldiers: they were, thus, not of a political character. Canadian courts dealt with the matter in R and Federal Republic of Germany v Rauca.130 Here, the fugitive did not even bother to attempt to claim that the offence was political, but relied on rights under the Canadian Charter of Rights and Freedoms, Constitution Act 1982; Rauca wished to be tried in Canada for his crimes.131 The Ontario Court of Appeal refused his application for habeas corpus and ordered his surrender. There is a developing customary international law to the effect that war crimes and crimes against humanity are not to be regarded as political offences. As well as these individual cases, at a regional level the 1975 Additional Protocol to the European Convention on Extradition132 excludes war crimes and crimes against humanity from the ambit of political offences under the parent convention. Article 1 – For the application of Article 3 of the Convention, political offences shall not be considered to include the following: a) the crimes against humanity speciﬁed in the Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948 by the General Assembly of the United Nations; b) the violations speciﬁed in Article 50 of the 1949 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, Article 51 of the 1949 Geneva Convention for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 130 of the 1949 Geneva Convention relating to the Treatment of Prisoners of War and Article 147 of the 1949 Geneva Convention relating to the Protection of Civilian Persons in Time of War; c) any comparable violations of the laws of war having effect at the time when this Protocol enters into force and of customs of war existing at that time, which are not already provided for in the above-mentioned provisions of the Geneva Conventions.

In conclusion, the trend of extraditing the fugitive to Germany is encouraging. However, it must be remembered that the U.N. treaties suggest trial in the State where the crime occurred and the government of the Germany has indicated it is only prepared to prosecute its own nationals.133 It would also be helpful if a court would categorically state that war crimes and crimes against humanity are outside

130 131 132 133

Supra n27. See now, Fenrick, supra n54, at p. 294. ETS 86. See correspondence between U.S. Attorney-General, William French-Smith, and German Justice Minister, Jurgen Schmude, 4 January and 12 February 1982, and covering press release 11 June 1982. Referred to by Narvey, Trial in Canada of Nazi War Criminals: Overcoming Certain Obiter in Rauca, 34 CR (3d) 126 (1983).

Responding to War Crimes, Crimes Against Humanity and Genocide

371

the purview of the political offence exemption, obviating the need for any more piecemeal municipal legislation or regional or international multilateral treaties which depend for their effectiveness on States ratifying them.

4. Asylum, Deportation, Expulsion and Abduction Extradition is occasionally unavailable and alternative methods of return have been used. Coupled with deportation and expulsion is the admonition that war criminals should not be granted asylum.

4.1 Asylum . . . States shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity.134

Taken from the 1973 Principles, discussed above, this is an all-pervasive exhortation to refuse asylum to war criminals. When refugees were eventually forcibly returned to Rwanda from Tanzania, many were arrested as genocide suspects.135 However, the 1973 Principles are merely a recommendation, a pious hope, not a direction to States that is binding upon them. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol136 provide in Article 1F(a) of the Convention that those guilty of war crimes are not to be treated as refugees for the purpose of the Convention; since non-refoulement under the Convention only extends to Article 1 refugees, then anyone excluded under 1F(a) is not entitled to that protection. Moreover, whilst Article 33 forbids refoulement, which encompasses the idea of a State refusing entry as well as deporting a refugee, the prohibition is circumscribed in that the right does not extend to those guilty of a ‘serious crime’. It is self-evident that war crimes and crimes against humanity would ﬁt within this category of serious offences.137

134 135 136 137

Supra n79, Article 7. The Guardian p. 9, 3 JAN 1997. 189 UNTS 137 at p. 150 and 606 UNTS 267, respectively. Melaku Tefera was extradited from Djibouti to Ethiopia on charges of crimes against humanity, even though he had formerly been under the protection of UNHCR – The Guardian p. 11, 19 MAY 1994; p. 12, 23 MAY 1994. The distinction between exclusion under Article 1F and loss of nonrefoulement protection under Article 33.2 is not always properly understood and applied. If a person has committed crimes against peace, war crimes or crimes against humanity and this emerges during the status determination process, then they ought to be excluded. Equally, if they conceal this fact and it later emerges after they have been granted refugee status, then it can be revoked because it was obtained on false pretences. If they commit such crimes only after obtaining refugee status, then given that Article 33.2 is meant to deal with those refugees who commit particularly

372

Chapter 7

Article 1F(c) also excludes from the scope of refugee status those who have acted contrary to the purposes and principles of the United Nations and who cannot, therefore, claim the protection of its humanitarian measures. Thus, the Convention and Protocol rights are not available to such fugitives.138 Coupled with the direction to extradite war criminals previously considered, and the non-political nature of such offences, it would appear that there should be no safe havens. How, though, have individual States applied these Convention measures? The United Kingdom incorporated the Convention and Protocol into its own immigration rules. However, such provisions are ineffective against fugitive war criminals who have managed to become naturalised British citizens.139 The United States, on the other hand, has passed which implements the Convention and Protocol in U.S. law and which includes all the above-mentioned Convention provisions,140 but has a speciﬁc measure pertinent to the issue of war criminals. The United States’ Department of Homeland Services has power to deport aliens who were connected with Nazism.141 Connected thereto is a power to strip the war criminal of his U.S. citizenship. This amendment, brought in with the Refugee Act 1980,142 was initially applied to Artukovic. In Artukovic v I.N.S.,143 the Court of Appeals agreed to the deportation subject to a hearing to determine whether the appellant had participated in the Nazi persecution in Croatia;144 it rejected a claim

138

139

140 141

142 143 144

serious crimes and are a danger to the community of the country of refuge, they should be dealt with thereunder. However, some, including UNHCR (see UNHCR Guidelines on International Protection: Application of the Exclusion Clauses, HCR/GIP/03/05, 4 September 2003, §1.D6, reproduced in 15 IJRL 492 (2003) – see also, the Background Note issued at the same time, reproduced in 15 IJRL 502 (2003) and Editorial, 16 IJRL 1 (2004) at pp. 1–2), have held that Article 1F(a) and 1F(c) can be used with respect to persons properly granted refugee status. On the basis that Article 1C deals with cessation and has no equivalent provision, it seems odd that Article 1F can continue to hang over someone who was deemed rightly within the 1951 Convention. It should be borne in mind that unarmed UNHCR workers may not be in a position to exclude heavily armed “refugees” in camps – everything is dependent on the host State and the political will of the international community. See Landgren, Safety Zones and International Protection: A Dark Grey Area, 7 INT’L J REFUGEE L 436 (1995). See the ability to prosecute even naturalized citizens for homicides committed during the Nazi era, regardless of the nationality they held at that time – War Crimes Act 1991. Universal jurisdiction already existed for those committing grave breaches of the Geneva Conventions 1949 – Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995. 8 USC §1427. 8 USC §1227(4)(D). Cf. Gordon in Evans, International Procedures for the Apprehension and Rendition of Fugitive Offenders, [1980] A.S.I.L. PROC.274 at pp. 284–86, on the problems of deporting war criminals. See also, Abramson. Reﬂecting on the Unthinkable: Standards Relating to the Denaturalization and Deportation of Nazis and Those Who Collaborated With the Nazis During World War II. 57 U CIN L REV 1311 (1988). PL 69–212; 94 Stat.107. 693 F.2d 894 (1983). See the doubts expressed by the District Court in 170 F.Supp 383 (1959), on Artukovic. On Fedorenko, see The Guardian p. 6, 21 DEC 1984. See also Avdzej, a former U.S. citizen who voluntarily returned to the then F.R.G. The Guardian, 20 OCT 1984.

Responding to War Crimes, Crimes Against Humanity and Genocide

373

that the then 8 U.S.C. §1251(a)(19)145 was unconstitutional as being contrary to the rules of natural justice on grounds of retroactivity. In the end, Artukovic was eventually extradited to Yugoslavia, rather than deported. However, the United States did deport Feodor Fedorenko to the former Soviet Union to face war crimes charges, having ﬁrst stripped him of his citizenship, and has done the same to John Demjanjuk in relation to Ukraine.146 In the case of Argentina, previously a safe haven for Nazis, the government adopted a new approach in 1984. It rescinded the grant of political refugee status and ordered the expulsion of two Bolivian generals accused, inter alia, of genocide.147 It would seem therefore, that governments throughout the world are increasingly willing to rid themselves of war criminals. However, extradition between the two concerned States rather than deportation would be a more suitable vehicle for dealing with such fugitives – the two Bolivian generals went missing somewhere in South America and their trial in Bolivia had to continue in absentia.

4.2 Deportation or Expulsion148 On the other hand, deportation and expulsion have successfully been used in the past to ensure war crimes faced trial. Immediately after World War II, when there was no de jure German government following the unconditional surrender, many war criminals were returned to States in occupied Europe despite the fact that extradition treaties had lapsed during the war.149 Generally, special arrangements were concluded between the Allied Powers and the formerly occupied States.150 As was stated in In re Flesche. [from] this series of declarations and agreements it was evident that it was the ﬁrm intention of all the Powers allied against Germany and her allies to ensure, in despite of all the traditional rules relating to the extradition of political criminals and of a

145 146

147 148

149

150

Now 8 U.S.C. §1227(4)(D). United States v Demjanjuk 367 F.3d 623 (2004); cert.den. Demjanjuk v United States, 160 L.Ed. 2d 341, 125 S.Ct. 429 (2004). The Guardian p. 4, 18 FEB 1984. Deportation or expulsion should not be used by a State to rid itself of an undesirable alien if that means that the latter escapes punishment for war crimes. Konrad Kalejs, an alleged member of the Latvian Arajs Kommando during the Second World War, was deported from the United States to Canada and then arrived in the United Kingdom. The British Home Secretary decided to deport him to Australia having decided there was insufﬁcient evidence to prosecute him in the United Kingdom, but before that deportation could take place, he ﬂed to Australia where he had obtained citizenship after 1945. The Guardian p. 1, 28 DEC 1999; p. 2, 29 DEC 1999; p. 4, 3 JAN 2000; p. 1, 4 JAN 2000; p. 4, 5 JAN 2000; p. 5, 6 JAN 2000; p. 4, 8 JAN 2000. See Argento v Horn, 241 F.2d 258 (1957); cert.den.355 US 818 (1957). See also SHEARER, supra n117, at pp. 43–45. See the St James’ Palace Declaration of 13 JAN 1942 and the London Agreement of 8 AUG 1945. See also, OPPENHEIM, DISPUTES, WAR AND NEUTRALITY, at p. 583,n2, (7th ed., 1952).

374

Chapter 7 State’s own nationals, that, by a form of collaboration to be deﬁned later, all war criminals should be delivered over to the respective allied States in which they had perpetrated their crimes.151

Such arrangements did not contain the usual protections of extradition treaties, such as the principle of specialty in Flesche’s case. They were a hybrid of extradition and deportation and they were obviously necessary in the aftermath of World War II. However, Klaus Barbie was expelled from Bolivia to France in the 1980s152 in relation to crimes against humanity perpetrated during the Second World War. He alleged that expulsion to France amounted to disguised extradition and that France was in violation of international law for having obtained jurisdiction in these circumstances. The Cour de Cassation held that ‘all necessary measures’ are to be taken by the Member States of the United Nations to ensure that war crimes, crimes against peace and crimes against humanity are punished and that those persons suspected of being responsible for such crimes are sent back ‘to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those countries.153

On the basis of the Cour de Cassation’s reasoning, the power to deport or expel is to be treated as coextensive with extradition. In the case where no extradition treaty exists,154 or where it is likely that the fugitive may ﬂee again, then deportation or expulsion may be suitable as alternatives, but it would be inappropriate to use them in a general fashion to deny rights granted by extradition treaties.155 The United Nations recognises this through its exhortations to extradite fugitive war criminals rather than summarily surrendering them to the requesting State.156 It is possible that such procedures might also violate regional human rights conventions, such as the European Convention on Human Rights following the decision in Bozano v France.157

4.3 Abduction The attitudes to war crimes have led on at least one occasion to an offender being kidnapped, as was seen in Chapter Six above. In 1960, Adolf Eichmann was

151 152 153 154

155 156

157

16 INT’L L REP.226 at 228 (1949), Special Criminal Court, Amsterdam, Holland. Supra n56. Supra n56, at 131. For example, the Rwandan request for Callixte Mbarushimana from Kosovo, District Court of Gjilan, 11 June 2001. E.g. R v Governor of Brixton Prison, ex p.Soblen, [1962] 3 All ER 641. Although it still continues – see Central Europe Today on Canada’s plans to deport former Nazis to the Czech Republic and Latvia, 20 APR 1995; see also, The Guardian p. 9, 10 APR 1993. See Chapter Six; 9 EHRR 297 (1986).

Responding to War Crimes, Crimes Against Humanity and Genocide

375

abducted from Argentina to Israel; whether by Israeli agents or private individuals is not clear,158 but Israel deﬁnitely ‘adopted’ these acts by prosecuting Eichmann.159 There was no extradition treaty between Argentina and Israel, but the kidnap obviously violated Argentine sovereignty and resulted in a United Nations Security Council resolution to try to solve the matter. As Shearer points out, “abduction is such a manifestly extra-legal act”.160 However, the ICTY has been more ﬂexible in relation to the use of abduction in relation to crimes of this nature.161 26. . . . In the opinion of the Appeals Chamber, the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation. Therefore, the Appeals Chamber does not consider that in cases of universally condemned offences, jurisdiction should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from international justice, whatever the consequences for the international responsibility of the State or organisation involved. This is all the more so in cases such as this one, in which the State whose sovereignty has allegedly been breached has not lodged any complaint and thus has acquiesced in the International Tribunal’s exercise of jurisdiction. A fortiori, and leaving aside for the moment human rights considerations, the exercise of jurisdiction should not be declined in cases of abductions carried out by private individuals whose actions, unless instigated, acknowledged or condoned by a State, or an international organisation, or other entity, do not necessarily in themselves violate State sovereignty.

In the absence of a Chapter VII Resolution, however, authorising the apprehension without the co-operation of the State where the transnational fugitive offender is residing, in the interests of maintaining international peace and security, abduction should not be adopted even with respect to war criminals.

4.4 Summary Although extradition is the recommended process for returning war criminals to the locus delicti, expulsion especially is being used as a viable alternative. It would appear that it is now accepted that war crimes are not political offences and it is to

158 159

160 161

See The Guardian p. 17, 1 JAN 2002. Attorney General of the Government of Israel v Adolf Eichmann, supra n27; Cardozo, When Extradition fails is Abduction the Solution, 55 AM.J INT’L L 127 (1960); see Chapter Six. Supra n117, at p. 75. Prosecutor v Dragan Nikoli,c Decision on Interlocutory Appeal Concerning Legality of Arrest, IT-94–2–AR73, Appeals Chamber 5 June 2003 – discussed in Chapter Six. With respect to the International Criminal Tribunal for the former Yugoslavia, the failure by the authorities in Serbia, Croatia and Republika Srpska, in particular, to surrender indicted war criminals to The Hague, saw S-FOR apprehend those wanted; they would be authorised so to act under Chapter VII. And see, The Guardian p. 10, 20 DEC 1996.

376

Chapter 7

be hoped that kidnapping will remain dormant for war criminals. Unfortunately,162 many war criminals are still at large, enjoying immunity,163 although it should be noted that the State where they obtain asylum may suffer sanctions as a result,164 and they are effectively condemned to a life of internal exile as they dare not travel abroad for fear of arrest.165

5. Jurisdiction over war crimes, crimes against humanity and genocide The ﬁnal question concerns the ultimate destination of such fugitives. Who has jurisdiction over persons committing genocide, war crimes and crimes against humanity?

5.1 Territorial Jurisdiction Obviously, the State where the crimes were perpetrated may claim territorial jurisdiction.166 Article VI of the Genocide Convention grants jurisdiction to domestic courts on the basis of territoriality alone167 or to some international criminal tribunal.

162

163

164 165 166

167

Halberstam, What Price Peace: From Nuremberg to Bosnia to the Nobel Peace Prize, 3 ILSA J INT’L & COMP.L 570 (1997). D’Amato, Peace vs. Accountability in Bosnia, 88 AM.J INT’L L 500 (1994); Orentlicher, Swapping Amnesty for Peace and the Duty to Prosecute Human Rights Crimes, 3 ILSA J INT’L & COMP.L 713 (1997). The Guardian p. 14, 10 JAN 1997. The Independent p. 15, 27 MAR 1997. See France’s prosecution of Klaus Barbie, supra n56, and Italy’s somewhat inglorious but eventually successful prosecution of Erich Priebke – The Guardian p. 3, 2 AUG 1996; p. 9, 5 AUG 1996; p. 11, 14 AUG 1996; p. 15, 16 OCT 1996; p. 10, 23 JUL 1997. Priebke complained to the European Court of Human Rights, App. 4879/99 (Second Section) 5 April 2001, (First Section) 2 March 1999. Part of his complaint was that due to his age and ill-health, Italy had violated his right to be free from inhuman and degrading treatment and his right to life. Both complaints were rejected as manifestly ill-founded – Second Section §§4 and 5. Belatedly, France started to prosecute its own nationals for crimes committed as part of the Vichy government – see Touvier 100 INT’L L REP.337 (1992, with 1994 addendum at 364), and the trial of Maurice Papon, The Guardian p. 13, 24 JAN 1997. Papon took France to the European Court of Human Rights (First Section), App. 54210/00, 25 July 2002 where he succeeded in part in proving a violation of Article 6. He had complained that France breached Article 3, too, given his state of health, but this claim was rejected at the admissibility stage – (Third Section) App. 64666/01, 7 June 2001. Papon was eventually released from prison because he was too ill to serve his sentence – The Guardian p. 3, 19 SEP 2002. See the charges against Rios Montt regarding genocide in Guatemala p. 11, 7 JUN 2001. See also the genocide trials in Rwanda – The Guardian p. 16, 5 FEB 1999; p. 13, 3 APR 2000; p. 14, 18 JUN 2001; p. 13, 5 AUG 2003; p. 17, 23 JAN 2004.

Responding to War Crimes, Crimes Against Humanity and Genocide

377

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

If territorial jurisdiction is claimed, however, then it must be shown that the State had control of that territory at the time the offences were committed, a question that is not simple post-conﬂict if new States have been created or borders have been redrawn.168 Moreover, the case of In re Lo Dolce169 was decided partly on the basis that at the relevant time the Italian government was not in control of its territory because it was occupied by the allied forces.170 In addition, there is the possibility that a new government will seek to prosecute only those who supported the losing side in the previous conﬂict.171 On the other hand, in the case of non-international armed conﬂicts the territorial State may be the only one to be able to assert any form of jurisdiction except for universality.172

5.2 Nationals as transnational fugitive offenders The active personality principle of jurisdiction is pertinent to war crimes. The idea that trials of war criminals are mere victor’s justice ignores the fact that members of the armed forces are regularly prosecuted by their own military courts for violations of the various laws and customs of war.173 In the United Kingdom, the Army Act 1955 provides jurisdiction over crimes committed anywhere in the world by a serving member of the British military.174 Breaches of the Act have led to charges

168

169

170 171

172

173 174

NB. See the 2003 trial in Belgrade with respect to crimes committed in the Kosovo wars – The Guardian p. 13, 10 JUL 2003; G2, pp. 2–3,10 JUL 2003. Between 1996 and 2004, the Ofﬁce of the Prosecutor at the ICTY vetted every warrant issued by courts in Bosnia-Herzegovina for the trial of those accused of war crimes under the so-called Rules of the Road procedure – this function was transferred to the BiH Prosecutor’s Ofﬁce in October 2004 (see the ICTY website – http://www.un.org/icty/pressreal/2005/infosheet.htm). 18 INT’L L REP.318 (1952), District Court, Western District, New York, U.S.A. Cf. In re Flesche, supra n151, where the Allies returned a Nazi war criminal to the Netherlands for trial, even though his crime must have occurred while The Netherlands was occupied. Cf. The Guardian p. 15, 14 JAN 2004. See the issue raised by post-Soviet era cases in Latvia – The Guardian, G2, pp. 8–9, 13 MAR 2000; p. 16, 18 DEC 2003. See the prosecution of the Russian colonel for the rape and murder of a Chechen woman – The Guardian p. 17, 1 MAR 2001. See Hampson, ‘Liability for war crimes’, in ROWE, supra n48. See also R v Page [1953] 2 All ER 1355. However, if the British citizens are not members of the military, the United Kingdom exercises very limited active personality principle jurisdiction – see Chapter Three, above. This limited jurisdictional remit meant that United Kingdom courts had little scope to prosecute United Kingdom citizens detained at Guantanamo Bay by the United States. See The Guardian p. 1, 15 JUL 2003; cf. France and its citizens at Guantanamo Bay – The Guardian p. 13, 2 AUG 2004.

378

Chapter 7

being pressed in relation to several peacekeeping operations and the occupation of Iraq.175 The same is true of soldiers from the United States.176 Canada convicted one of its soldiers who had served in Somalia as part of the United Nations peacekeeping force for torture, a war crime and a crimes against humanity.177 France is prosecuting one of its generals for allegedly killing an Ivorian woman during a peacekeeping operation.178 Italy investigated troops for sexual abuse of children in Eritrea.179 Given that troops operating abroad will often have immunity under status of forces agreements (SOFAs), this jurisdiction over the military is essential.180 Accepting that there has to be sufﬁcient evidence before a trial can be mounted,181 there are concerns that trials in the sending State favour the accused.182 Finally, while the military take their national law with them, the same is true for all civilians working in conﬂict and post-conﬂict zones. If the State of nationality exercises broad active personality principle jurisdiction, then non-military personnel could be prosecuted, but that is not always the case. On a slightly different tack, as an alternative to the exercise of territorial jurisdiction, Germany has undertaken to prosecute its own nationals for war crimes wherever committed during the Second World War.183 Unfortunately, as time passes, the likelihood is that the accused or the witnesses will be too frail for a trial to be successfully undertaken.184

175

176

177 178 179 180

181

182 183 184

See prosecution of United Kingdom soldiers for alleged prisoner abuse in Iraq – The Guardian pp. 1 and 2, 10 JAN 2005; p. 6, 11 JAN 2005; p. 8, 17 JAN 2005; pp. 1 and 4, 19 JAN 2005; p. 4, 20 JAN 2005; p. 4, 22 JAN 2005; p. 8, 24 JAN 2005; p. 8, 25 JAN 2005; p. 11, 26 JAN 2005; p. 13, p. 2, 28 JAN 2005; p. 4, 2 FEB 2005; p. 12, 11 FEB 2005; p. 4, 18 FEB 2005; p. 2, 26 FEB 2005; p. 4, 25 MAR 2005. See Article 15–6 Investigation of the 800th Military Police Brigade, requested by Lt-General Ricardo Sanchez, Commander, Combined Joint Task Force Seven (CJTF-7), and carried out by Maj.General Taguba. CONCLUSION – 1. (U) Several US Army Soldiers have committed egregious acts and grave breaches of international law at Abu Ghraib/BCCF and Camp Bucca, Iraq. Furthermore, key senior leaders in both the 800th MP Brigade and the 205th MI Brigade failed to comply with established regulations, policies, and command directives in preventing detainee abuses at Abu Ghraib (BCCF) and at Camp Bucca during the period August 2003 to February 2004. See also, The Guardian p. 13, 18 JAN 2000; BBC News website 4636344.stm, 2006/01/22 06:48:57; 4657978.stm, 2006/01/28 15:12:58. The Guardian p. 15, 8 MAR 1994; see also, p. 12, 28 APR 1994. The Guardian p. 16, 15 DEC 2005. The Guardian p. 14, 25 AUG 2001. Fleck, Sofas and immunity from international criminal jurisdiction, 1 JICJ 651 (2003). NB. United States troops accused of gun running to paramilitaries in Colombia beneﬁted from this sort of agreement – The Guardian p. 19, 6 MAY 2005; BBC News website 4518915.stm, 2005/05/05 22:02:12. See the investigation of Colonel Tim Collins – The Guardian p. 2, 22 MAY 2003; p. 4, 26 MAY 2003. The Guardian p. 15, 8 JUL 2004; p. 11, 8 APR 2005; p. 6, 19 MAY 2005; p. 16, JAN 2006. Supra n133. See The Guardian p. 15, 21 MAY 1999. See the trial of an ex-SS guard for crimes in The Netherlands that collapsed because the accused could not understand the proceedings – The Guardian p. 11, 3 FEB 2004. See also, the trial of

Responding to War Crimes, Crimes Against Humanity and Genocide

379

5.3 Universal Jurisdiction185 Israel claims jurisdiction with respect to Holocaust crimes under its own ‘Nazi and Nazi Collaborators (Punishment) Law of 1951’ over war crimes, crimes against Jewish people and crimes against humanity.186 It is not disputed that the Israeli government has the greatest interest in prosecuting Nazi war criminals, even though the State of Israel did not exist at the time of the crimes and the Jewish people were not the only ones to be victimized during the holocaust. Lest the war criminal would otherwise escape punishment, Israel should have jurisdiction like any other State. However, if the State where the crime occurred is willing to prosecute, then both United Nations policy and the general principle of international law that territorial jurisdiction takes primacy, would suggest that the fugitive should be surrendered to the authorities there. Israel asserts the right to prosecute by exercise of three principles of jurisdiction; the protective, passive personality and universal principles. The protective principle was used in Eichmann.187 There are problems with this principle in Israel’s case, for, at the time of the offences, the State of Israel did not exist and therefore it is questionable whether the crimes could threaten the vital interests of the State. The court in Eichmann argued, however, that the vital interests of the Jewish people had been threatened by the holocaust and on that ground the linking-point with Israel had been established.188 Indeed, the language of the judgment would go so far as to permit an assertion of jurisdiction on the basis of the passive personality principle,189 even though the victims were not Israeli nationals. Technically, the argument that the Jewish people could constitute the State-of-Israel-in-waiting, as it were, is not supported by international law, but, with respect to jurisdiction over war crimes alone, it does not seem that the issue has been contested. If the universality principle is applicable, however, then there is no difference between Israel and any other State. On the other hand, there is a general principle of international practice190 that before arrogating to itself such jurisdiction, the holding State ought to offer the fugitive for prosecution to the State with territorial

185

186 187 188 189

190

Ladislav Niznansky that failed due to doubts about the evidence – The Guardian p. 13, 20 DEC 2005. In the Alexander Schweidler case in the United Kingdom, the accused, a naturalized British citizen, died a few days after his arrest – The Guardian pp. 1, 2 and 8, 20 JAN 2000; p. 5, 21 JAN 2000; p. 6, 29 JAN 2000. Gasser, ‘Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations’, in FOX & MEYER, EFFECTING COMPLIANCE, 1993, at p. 15. See the Eichmann case, supra n27. Supra n27. See Reiss, supra n123, at pp. 301–07. Supra n27, at paras. 30–38. See also the Lotus Case (Turkey v France) 1927 PCIJ Reps, Series A, No. 10. See Fenrick, supra n54, at pp. 281–82. See Fawcett The Eichmann Case, 38 BRIT.YB.INT’L L 181 (1962), where he considers Poland’s readiness to try Eichmann at pp. 206–07.

380

Chapter 7

jurisdiction. However, since many of the victims and much of the information concerning Nazi war crimes is in Israel, it may be that the rationale for this rule of practice is not as forceful. In the Demjanjuk extradition cases in the United States, both the District and Circuit courts supported Israel’s right to prosecute the accused on the basis of the universality principle.191 Neither court dealt in any great depth with either of the other two principles of jurisdiction asserted by Israel in Eichmann. The only jurisdictional question, therefore, is the appropriateness of the universality principle to war crimes and crimes against humanity. Judge Moore in the Lotus Steamship192 gave a dissenting judgment that tells against the use of the universality principle. But the case is fundamentally different where a country claims either that its penal laws apply to other countries and to what takes place wholly within such countries or, . . ., that it may punish foreigners for alleged violations, even in their own country, of laws to which they were not subject.

However, given that war crimes and crimes against humanity are so heinous that anyone committing one would be aware of the gravity of the offence, which same fact would justify his prosecution no matter where he is found, Judge Moore’s strictures are not determinative in these circumstances. As Judges Higgins, Kooijmans and Buergenthal make clear in their separate opinion in the Arrest Warrant case,193 the position is changing. 52. We may thus agree with the authors of the Oppenheim, 9th Edition, at page 998, that: While no general rule of positive international law can as yet be asserted which gives to states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a signiﬁcant principle of international law to that effect.

War crimes and crimes against humanity, as understood in this chapter, would be known by their perpetrators to be contrary to the general principles of law common to all nations, acknowledging thereby their universal status.194

191 192 193

194

612 F.Supp 544 at 555; 776 F.2d 571 at 582. Supra n189, at 82. Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium), ICJ 2002, General List No. 121. Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v Belgium), ICJ 2002, General List No. 121. Swiss courts prosecuted a Bosnian for his part in crimes in the former Yugoslavia – In re G 92 AM.J INT’L L78 (1998). Frans van Anraat was convicted in The Netherlands of complicity in war crimes for supplying Saddam Hussein’s regime with the chemicals used to create weapons deployed against its own Kurdish population in 1988 – BBC News website 4555000.stm, 2005/12/23 17:01:30.

Responding to War Crimes, Crimes Against Humanity and Genocide

381

[The] development of the law in this ﬁeld seems to be moving towards a recognition of universal jurisdiction over all serious war crimes; and it would not seem unreasonable to conclude that this recognition was already complete.195

Moreover, it has been suggested that Article 5, Genocide Convention 1948196 confers universal jurisdiction on all States and that this is part of customary international law.197 Further, the United Nations War Crimes Commission stated: . . . the right to punish war crimes . . . is possessed by any independent State whatsoever,. . . .198

The Geneva Conventions and 1977 Additional Protocol I require High Contracting Parties to enact legislation to provide effective penal sanctions for persons committing such grave offences as are set out.199 By way of example, the United Kingdom has implemented this requirement in the Geneva Conventions Act 1957 and the Geneva Conventions (Amendment) Act 1995.200 In consequence of actions

195

196

197

198

199

200

Carnegie, Jurisdiction over Violations of the Laws and Customs of War, 39 BRIT.YB.INT’L L 402, at p. 424 (1963). A Danish court has convicted a Bosnian Muslim of gross violence and murder for crimes committed in a camp near Mostar – The Times p. 13, 23 NOV 1994. See also, Tadic, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No.IT-94–1–AR72 (1995). Supra n25. Cf. Art. VI V. The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III. See also, Schabas, National Courts Finally Begin to Prosecute Genocide, the ‘Crime of Crimes’, 1 JICJ 39 (2003). Carnegie, supra n195, at p. 421. Canada investigated the case of Leon Mugesera, a former Hutu government ofﬁcial from Rwanda, accused of inciting genocide, relying on its power to prosecute anyone accused of crimes against humanity under its War Crimes Act – The Guardian p. 8, 17 AUG 1994; BBC News website 4362498.stm, 2005/10/20 21:59:25. Two brothers from Rwanda were gaoled in Belgium for their part in the genocide – The Guardian p. 15, 30 JUN 2005. A court in Spain is to hear a genocide case against former Chinese leaders, Li Peng and Jiang Zemin, who are alleged to have committed genocide against Tibetans – The Guardian p. 14, 11 JAN 2006. 15 War Crimes Reports 26 (1949). Cited in HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW, (4th ed., 1991) at p. 275. Supra n72, Geneva Convention I, Arts. 49 & 50; II, Arts. 50 & 51; III, Arts. 129 & 130; IV, Arts. 146 & 147. Protocol I to the Geneva Conventions, 1977, applies the same protections for the new ﬁelds now covered – Art. 85 (see supra n74). See Rowe and Meyer, The Geneva Conventions (Amendment) Act 1995: A Generally Minimalist Approach, 45 INT’L & COMP.LQ 476 (1996); Hampson, The Geneva Conventions and the Detention of Civilians and Alleged Prisoners of War, [1991] PUB.LAW 507. For the trial of persons for crimes committed in WWII prior to the Geneva Conventions, see the War Crimes Act 1991. The only successful conviction under the 1991 Act was of Anton Sawoniuk – R v Sawoniuk [2000] 2 Cr.APP.R.220. He died in Norwich Prison – The Guardian p. 18, 8 NOV 2005. The Simon Wiesenthal Centre has condemned the United Kingdom for its poor record on prosecution of Nazis – The Guardian p. 4, 20 APR 2001. See the revised interest in prosecuting Nazi war criminals in the United Kingdom – The Guardian p. 9, 4 FEB 2006; BBC News website 4680836.stm, 2006/02/04 15:01:02.

382

Chapter 7

perpetrated during the performance of duties on behalf of the United Nations, Canada, Italy and Belgium have all had to carry out war crimes investigations of members of their armed forces.201 Canada also prosecuted alleged war criminals from the Nazi era, although their acquittals, especially that in the Finta case202 led to a change in the Canadian law. Furthermore, the extremely broad interpretation of the defence of superior orders203 begs the question as to how far universal crimes204 can best be prosecuted in domestic courts which all apply different notions of the crimes and the scope of any pertinent defence. Apparently war crimes, like piracy, are triable by a court anywhere in the world, although it would be preferable for the time being that they be tried in the State where the crime was committed.205 This policy is the general practice206 and only Israel seems prepared to act independently, for the obvious reasons.

5.4 International Criminal Tribunals An alternative arising out of the Nuremberg Tribunal and Article VI Genocide Convention has always been the establishment of a permanent international court for the trial of war criminals. The idea is an old one, dating back to the ﬁfteenth century at least. McCoubrey207 cites the case of Peter von Hagenbach from 1474.208 Hagenbach, as Governor of Breisach, instituted a reign of terror on behalf of the Duke of Burgundy. After the defeat of the Burgundian forces, Hagenbach was put on trial for what would today be crimes against humanity, since, for the most part, his offences occurred before the start of the armed conﬂict. The tribunal was drawn

201

202

203 204

205

206

207

208

See Canada’s experience of violations committed by its troops in Somalia (The Guardian p. 8, 5 April 1993, p. 15, 17 January 1997, and p. 21, 3 July 1997) and Bosnia-Herzegovina (The Guardian p. 12, 18 January 1997), and, again in Somalia, Belgium’s (The Guardian p. 21, 12 April 1997, p. 14, 23 June 1997 and p. 12, 1 July 1997) and Italy’s (The Guardian p. 18, 7 June 1997 and p. 15, 25 June 1997). Somali faction leaders have asserted that they should receive damages from the United Nations for the behaviour of these troops – The Guardian p. 14, 12 July 1997. See also, Alex de Waal, A Brutal Peace, The Guardian, Editorial, p. 21, 30 October 1997. (1989) 61 DLR (4th) 85 (Ont HC); (1992) 92 DLR (4th) 1 (Ont CA); [1994] SCR 701, (1994) 112 DLR (4th) 513, 88 C.C.C. 3d 417. See also, Cotler, 90 AM.J INT’L L 460 at p. 475. Supra n202, (1994) 112 DLR (4th) 513 at 604–20 (SCC). See Polyukhovich v Commonwealth of Australia 91 INT’L L REP.1 at 104–05 (1991), where the Australian High Court on a preliminary matter refused to accept that the domestic legislation was retroactive since the offences would have been proscribed in any civilized society – Polyukhovich was eventually acquitted in 1993. The success rate for prosecuting alleged Nazis from WWII is not high – see The Guardian p. 2, 15 DEC 1993. E.g. The Rauca case where Canada refused jurisdiction which it probably had under its then War Crimes Act and Geneva Conventions Act, supra n27, and Narvey, supra n133. Paper delivered at the University of Southampton, England, September 1989, at p. 3. See also BASSIOUNI, supra n47, at p. 416. Also cited by SCHWARZENBERGER, vol.2, INTERNATIONAL LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS, at pp. 462–66 and Fenrick, supra n54, at p. 275.

Responding to War Crimes, Crimes Against Humanity and Genocide

383

from Breisach and from other cities within the Holy Roman Empire. Such was the state of the Empire at this time, though, that it was tantamount to an international tribunal.209 Hagenbach was found guilty and beheaded. The Breisach court shows that from earliest times it has been useful to try war criminals before a widely drawn court. Such a tribunal should remove any fear of prejudice from which a national court might suffer. In the 1950s, the International Law Commission was asked to consider the establishment of a permanent international criminal tribunal. Unfortunately, nothing came of the General Assembly’s efforts at that time. Oppenheim’s International Law,210 while noting the political practicalities of establishing such a tribunal, stated that “an important international judicial organ open to all and established prior to the hostilities”, is a requirement both of justice and of the effectiveness of international law. a. The Responses to Crimes Committed During Conﬂicts Since 1990211 The last decade of the twentieth century saw a renewed effort to bring perpetrators of heinous crimes committed during certain conﬂicts to justice. Equally, the practice of establishing truth and reconciliation commissions continued.212 Whatever the success or failure of such attempts might be, the issue to be considered below, what is clear is that once certain crimes come to the knowledge of the international community, it can no longer be left as a simple matter of domestic jurisdiction what happens to those who have perpetrated them213 – certain crimes are matters of international concern.214 While the principle of universal jurisdiction, especially in its mandatory form in relation to grave breaches of the Geneva Conventions and Additional Protocol I thereto, has always allowed the international community to exercise jurisdiction over certain crimes through domestic trials, the ﬁnal decade of the twentieth century saw international criminal tribunals being established for

209 210 211

212

213

214

McCoubrey, at pp. 3–4. Vol. 2, DISPUTES, WAR AND NEUTRALITY (7th ed., LAUTERPACHT, 1952) at p. 586. The following draws in part on the author’s chapter, ‘What Price Justice? Prosecuting Crimes PostConﬂict’ in DOLGOPOL AND GARDAM, THE CHALLENGE OF CONFLICT, 2006, pp. 421–42. See also, Knoops, International and Internationalized Criminal Courts: the new face of international peace and security, 4 ICLR 527 (2004). On post-conﬂict justice in general, see the Editorial section of 2 JICJ 701–34 (2004). On TRCs in general, see Hayner, Fifteen Truth Commissions – 1974 to 1994: A comparative Study, 16 HRQ 597 (1994), and Ensalaco, Truth Commissions for Chile and El Salvador: A Report and Assessment, 16 HRQ 656 (1994). Which is not to ignore the domestic courts martial that have been held to deal with crimes committed by the State’s own military – see, for example, the discharge of three U.S. soldiers for abusing prisoners of war, BBC News Website (UK Edition) 5 January 2004, http://news.bbc.co.uk/ 1/hi/world/middle_east/3370979.stm; see also, the French investigation of four soldiers taking part in a peacekeeping operation in Côte d’Ivoire, The Guardian p. 13, 3 JAN 2004. For instance, see Amnesty International’s criticism of the failure by the United Nations and the international community to address serious conﬂict crimes in Afghanistan – Afghanistan: Reestablishing the rule of law, ASA 11/021/2003, 14 August 2003, at pp. 48 et seq.

384

Chapter 7

the ﬁrst time since the end of the Second World War, in what ought to have been a more co-ordinated response by the international community than States acting individually through universal jurisdiction.215 So much is trite fact, but what is often overlooked is that various other war crimes tribunals have been set up at the domestic level, sometimes with international involvement, sometimes without. If the period since 1990 has seen war crimes prosecuted with a greater consistency, the types of tribunal dealing with those cases have been many and varied. b. The Ad Hoc Tribunals for the former Yugoslavia and Rwanda In response to the crimes committed in the former Yugoslavia and Rwanda, the Security Council, acting under Chapter VII, established the two ad hoc tribunals in 1993 and 1994, respectively.216 The Yugoslav Tribunal has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute”; the ICTR was more limited and has “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute”. While the ad hoc tribunals are spoken of as if they were mirror images of each other, there are signiﬁcant differences in terms of their jurisdiction ratione materiae.217 It is not part of this section to compare and contrast the

215

216

217

Guillaume, Advantages and Risks of Proliferation: A Blueprint for Action, 2 JICJ 300 (2004); Pocar, The Proliferation of International Criminal Courts and Tribunals: A Necessity in the Current International Community, 2 JICJ 304 (2004); Cançado Trindade, The Merits of Coordination of International Courts on Human Rights, 2 JICJ 309 (2004). Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, UNSC Res.827 (1993) and may be found in 32 INT.LEG.MAT.1192 (1993); see also, Zacklin, Some major problems in the drafting of the ICTY Statute, 2 JICJ 361 (2004). The Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (ICTR), is to be found in UNSC Res.935 and 955 (1994), reprinted in 5 CRIM.LF 695 (1994); see also, Møse, Main achievements of the ICTR, 3 JICJ 920 (2005). Both can prosecute genocide and the deﬁnition is taken directly from the language of the Genocide Convention 1948. Article 4 Genocide 1. The International Tribunal shall have the power to prosecute persons committing genocide as deﬁned in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

Responding to War Crimes, Crimes Against Humanity and Genocide

385

deﬁnitions of crimes in the two Statutes, but when one notes that the jurisprudence of the tribunals is likely to have a profound effect on the decision-making process in the newly established International Criminal Court, to be discussed below, which has its own deﬁnition of crimes within its jurisdiction, then it highlights one general problem with he response of the international community since 1990, its superﬁcial and shallow analysis of the overall issue under discussion. That is not to say that the work of the ad hoc tribunals was shallow and superﬁcial, nothing could be further from the truth, but that there has been little or no evaluation of the success or failure of the various responses to armed conﬂict before yet another variation on the theme of post-conﬂict justice was attempted. While both ad hoc tribunals were created by the Security Council under Chapter VII of the United Nations Charter, the differences between the nature of the conﬂicts in the former Yugoslavia and Rwanda, amongst other reasons, dictated that the crimes under the Statutes would have to be different.218 The former Yugoslavia witnessed both international armed conﬂicts and non-international armed conﬂicts, whereas Rwanda was deemed to be solely non-international. As such, grave breaches of the Geneva Conventions 1949219 can be prosecuted before ICTY,220 while the ICTR expressly

218

219

220

(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inﬂicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. 3. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. See also, Article 2 of the ICTR Statute. Brown, Nationality and Internationality in International Humanitarian Law, 34 STAN.J INT’L L 347 (1998). However, not Additional Protocol I, even though the former Yugoslavia had ratiﬁed it. Does the fact that Article 2 of the Yugoslav Statute only refers to grave breaches under the 1949 Conventions indicate that the crimes enumerated in Articles 11 and 85 of Protocol I are different in nature and should be treated differently when a domestic court is asserting universal jurisdiction? The Secretary-General’s Report pursuant to Resolution 808 (1993), 32 INT.LEG.MAT.1192 (1993), stated that the International Tribunal should only apply rules of international humanitarian law which are without doubt part of customary international law; as such, the 1949 Convention grave breaches were deemed included, but not those in Protocol I. On the other hand, Sidhwa J. in Tadic held that Protocol I would be within Article 3 of the Yugoslav Statute as a ‘law or custom of war’. Moreover, while Cassese J. does not explicitly refer to Protocol I in his deliberations on Article 3 of the Yugoslav Statute, he does hold that Article 3 covers those parts of international humanitarian law which have become custom and which apply in internal armed conﬂicts To the extent that the conﬂict was international in character. Article 2 Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

386

Chapter 7

has jurisdiction over violations of common Article 3 and Additional Protocol II.221 Some of the restrictiveness of Article 2 of the Yugoslav Statute, omitting a reference to grave breaches under Protocol I, may be remedied by Article 3 of the Yugoslav Statute. Article 3 appears to offer more scope for expansion of universal jurisdiction, too. The phrase “laws and customs of war” comes from the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the annexed Regulations, as interpreted at Nuremberg.222 Article 2 of the Hague

(a) (b) (c) (d)

221

222

wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justiﬁed by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful conﬁnement of a civilian; (h) taking civilians as hostages. See also, Article 3 Violations of the Laws or Customs of War The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justiﬁed by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. Reﬂecting the perceived nature of the conﬂict. Article 4 Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: (a) Violence to life, health and physical or mental well- being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Pillage; (g The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; (h) Threats to commit any of the foregoing acts. The Secretary-General’s Report pursuant to Resolution 808 (1993), 32 INT.LEG.MAT.1192 (1993), at paragraphs 41 et seq.

Responding to War Crimes, Crimes Against Humanity and Genocide

387

Rules223 states that they are only to apply as between contracting Parties and where all the belligerents are party to the Convention. At ﬁrst blush, therefore, they should be inapplicable to the non-international armed conﬂict in BosniaHerzegovina. However, it was never intended that Article 3 of the Yugoslav Statute be limited to the Hague Rules and the phrase bears a wider import.224 Furthermore, there was little doubt that aspects of the laws and customs of war for international armed conﬂicts applied to non-international armed conﬂicts.225 The only question was whether individual criminal responsibility attached for such breaches of common Article 3 and Protocol II; regard should also be had to Article 4 of the Rwanda Statute. Given that the Security Council was prepared to give jurisdiction to the ICTR over breaches of common Article 3 of the Geneva Conventions and of parts of Protocol II, and that States in the Rome Statute, discussed below, included sixteen war crimes speciﬁc to non-international armed conﬂicts, then it is now recognised that the scope of universal jurisdiction with respect to crimes perpetrated in non-international armed conﬂicts also extends at least this far.226 Nevertheless, the difference in the type of conﬂict in the former Yugoslavia and Rwanda does little to explain the two completely different approaches to crimes

223 224

225

226

2 AM.J INT’L L (SUPP.) 90 (1908); UKTS 9 (1910), Cd 5030. The Secretary-General’s Report pursuant to Resolution 808 (1993), 32 INT.LEG.MAT.1192 (1993), paragraph 41, and UN Doc.S/PV.3217, 25 MAY 1993, pp. 11, 15 and 19. To that extent, Tadic was non-controversial – Case No.IT-94–1–AR72 (1995) at paragraphs 89 and 96 et seq., per Cassese J. See also, paragraphs 129–34: 134 . . . [all] of these factors conﬁrm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conﬂict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife. HENCKAERTS AND DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005). See also, Gasser, New Draft Declaration of Minimum Humanitarian Standards, 282 INT’L REV.RED CROSS 328 (1991). Initially, there had been some concern about the required degree of speciﬁcity necessary to create crimes – nullem crimen sine lege. See also, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City Case. Instead of applying a penal law equally clear to both the judge and the party accused, . . ., there is the possibility under the new decrees that a man may ﬁnd himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely on the appreciation of the situation by the Public Prosecutor and by the judge. Accordingly, a system in which the criminal character of an act and the penalty attached to it will be known to the judge alone replaces a system in which this knowledge was equally open to both the judge and the accused. (1935), Series A/B, No. 65 at pp. 52–3. Cf. The Border Guards Prosecution Case, 100 INT’L L REP.364 (German Federal Supreme Court), where the court rejected a defence claim based on nullem crimen sine lege because the Guards should have known that the defence they relied on under the former East German law was contrary to the human rights obligations of East Germany itself and where “the act, when committed, was criminal according to the general principles of law recognized by the international community” (at 389). The court used human rights as set out in the ICCPR to strike down the defence. Cf. Rytter, No Punishment Without Guilt, 21 NETH.Q HUM.RTS 39 (2003).

388

Chapter 7

against humanity227 – the Statute of the ICTY requires, wrongly,228 that there be an armed conﬂict, but has no requirement of persecution229 nor that the crimes against humanity be widespread or systematic, while the Statute of the ICTR does not require there to be an armed conﬂict, but does require that the crimes be widespread or systematic and that there is a persecutory element for all crimes under Article 3 thereof. The only universal requirement is that the attack has to be directed against a civilian population.230 It is not without signiﬁcance that the tribunals were labelled ‘ad hoc’. More pertinently for this discussion on responses to international crimes, one question that needs much deeper analysis is whether the Security Council had the 227

228

229 230

Statute of the ICTY Article 5 Crimes Against Humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conﬂict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts. Statute of the ICTR Article 3 Crimes against humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts. Cf. Paust, Threats to Accountability after Nuremberg: Crimes Against Humanity, Leader Responsibility and National Fora, 12 NYLS J HUM.RTS 547 at p. 553 (1995). See Tadic, Case No.IT-94–1–AR72 (1995). 141. It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conﬂict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and any conﬂict at all. Thus, by requiring that crimes against humanity be committed in either internal or international armed conﬂict, the Security Council may have deﬁned the crime in Article 5 more narrowly than necessary under customary international law. A freestanding crime against humanity under Article 5 of the Yugoslav Statute. Civilian population includes “individuals who, at one particular time, carried out acts of resistance” – Prosecutor v Mrk·i,c and Others, Case IT-95–13–R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 Apr 1996, paragraph 29; 108 INT’L L REP.53 at 63–66.

Responding to War Crimes, Crimes Against Humanity and Genocide

389

power to create the tribunals and, even if it did, whether it was the most appropriate organ of the United Nations for this purpose.231 The ad hoc tribunals were established under Chapter VII which had the advantage that member States of the United Nations were bound to comply with their requests.232 Given that they were established with primacy over national jurisdictions under their Statutes, the ad hoc tribunals had great authority to obtain the surrender of alleged perpetrators, something that was certainly seen as necessary with the war in the former Yugoslavia still continuing in 1993 and with the genocidaires at large in 1994 in neighbouring States, particularly what was then Zaire.233 However, the Security Council only has those powers granted to it by the United Nations Charter.234 Assuming that an international criminal tribunal can be seen as part of a process to maintain or restore international peace and security, the powers are to be found in Articles 41 and 42. Since Article 42 authorizes the use of force,235 it is Article 41 that is pertinent:

231

232

233

234 235

I am grateful to my colleague, Elizabeth Grifﬁn, for her insights on this issue. But for her comments, this Chapter would have been the poorer – needless to add, any errors are mine alone. See also, Sarooshi, The Legal Framework Governing UN Subsidiary Organs, 67 BRIT. YB. INT’L L 413 (1996). Although the ICTY has no authority to issue a subpoena against a State because international law has no conception of penalties against States – Prosecutor v Bla·kic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997, 110 INT’L L REP 607 at 688 et seq., especially, paragraphs 20 et seq., 33 et seq., 38, and 46 et seq. – not only is the State protected but also individuals acting their ofﬁcial capacity. The Security Council has laid down in both Statutes that States shall co-operate with requests from the Tribunals. Article 29 ICTY Statute. 1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identiﬁcation and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal. See also, Article 28 ICTR Statute. Nevertheless, co-operation by Croatia, Serbia and Montenegro, and Rwanda has been less than enthusiastic – The Guardian p. 17, 18 DEC 2004; p. 12, 5 JAN 2005; p. 13, 17 JAN 2005. Where there has been assistance, other political factors had as much sway on the surrender as did the Chapter VII status of the Tribunals eg. accession to the European Union (The Guardian p. 12, 7 JUL 2005; p. 16, 9 DEC 2005) or a peace treaty between Rwanda and the DRC (The Guardian p. 13, 31 JUL 2002; p. 19, 2 OCT 2002). NB. States in the West do not have a perfect record in this regard: see Italy’s failure to surrender a Rwandan priest to the ICTR (The Guardian p. 12, 16 JUL 2001), and the Vatican’s alleged protection of genocidaires (The Guardian p. 22, 21 JUL 2001). See also, paragraphs 31 et seq. of the Tadic Case No.IT-94–1–AR72 (1995). Article 42 United Nations Charter Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may

390

Chapter 7 Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

While the list of Article 41 responses is not exhaustive, establishing international tribunals to prosecute crimes does not automatically resonate as a method for maintaining or restoring international peace and security under Chapter VII. Such actions sit more comfortably within the functions of the General Assembly. Nevertheless, the Security Council has the power to create subsidiary organs under Article 29. However, independent international criminal tribunals do not necessarily fall within the deﬁnition of a subsidiary organ, a term more normally understood to refer to investigative bodies established for dispute settlement.236 As such, one would have to ﬁnd that the ICTY and ICTR are special sorts of subsidiary organs.237 If Article 41 is not the source of the Security Council’s authority for establishing the ICTY and ICTR, can one ﬁnd a general power so to do in order that it can properly fulﬁl its functions? The United Nations has international legal personality. In the Reparations Case,238 the International Court of Justice, acknowledging the role the United Nations was intended to fulﬁl according to its founders, with its attendant duties and responsibilities, held that the attribution of international personality in large measure was indispensable. Whilst the United Nations is not a State, “it is a subject of international law and capable of possessing international rights and duties. . . .” As such, while one must always start with the Charter as the source of authority for the actions of the organs of the United Nations, powers can be implied so as to enable it to carry out its necessary tasks and fulﬁl its role. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as

236

237

238

be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. See SANDS AND KLEIN, BOWETT’S LAW OF INTERNATIONAL INSTITUTIONS, 2001, at paragraph 2–040. As the ICTY found at paragraph 15 of Du·ko Tadi,c, a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction before the Appeals Chamber of ICTY, Case No.IT94–1–AR72 (1995), without citing supporting authority. Reparation for Injuries Suffered in the Service of the United Nations Case, Advisory Opinion, ICJ Rep. (1949) p. 174 at pp. 178–79.

Responding to War Crimes, Crimes Against Humanity and Genocide

391

“implied” powers. As far as the United Nations is concerned, the Court has expressed itself in the following terms in this respect: ‘Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’ (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182–183).239

Given, however, that Article 41 is not a closed list of measures Member States can be asked to take, if one cannot imply the creation of ad hoc tribunals into that provision, should one be so quick to imply it under some general authority “as being essential to the performance of [the Security Council’s] duties”? On the other hand, given that it is over a decade since the ICTY was established, the issue of whether it was ultra vires seems a tad moot. The Security Council did create the ad hoc tribunals and they have functioned.240 Thus, the more fruitful line of inquiry would seem to be whether they have fulﬁlled their expectation.241 The Security Council established the ICTY in Resolution 827 (1993) “to take effective measures to bring to justice the persons who are responsible for [widespread and ﬂagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina]”, to prosecute “persons responsible for serious violations of international humanitarian law” so as to “contribute to the restoration and maintenance of peace”, “[believing] that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed”. The ICTR had similar aims.242 How far the establishment of the ICTY led to the Dayton Accords 1995 is not susceptible of a straightforward answer, but one can more readily critique whether the ICTY, and similarly

239

240

241 242

Legality of the Use by a State of Nuclear Weapons in Armed Conﬂict, 1996 ICJ, General List No. 93, 8 July 1996, at paragraph 25. See also, the Lockerbie case, where the ICJ seems to have deferred to the Security Council, so it is difﬁcult to see how the Security Council’s decision could be challenged (Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v United Kingdom and the USA, 1992 ICJ Rep. p. 3 at paras.39 et seq., 31 INT.LEG.MAT.662 (1992) – see Beveridge, The Lockerbie Affair, 41 INT’L & COMP.LQ 907 at pp. 916–919 (1992); cf. Alvarez, Judging the Security Council, 90 AM.J INT’L L 1 (1996)). See also, §IV.7 of the dissenting judgment of Judge Weeramantry in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ General List No. 95, 8 July 1996: For the sake of completeness, it should here be pointed out that, even if the Security Council had expressly endorsed the use of such weapons, it is this Court which is the ultimate authority on questions of legality, and that such an observation, even if made, would not prevent the Court from making its independent pronouncement on this matter. See Zacklin, The Failings of the Ad Hoc International Tribunals, 2 JICJ 541 (2004). See UNSC Res.935 and 955 (1994), but including a reference to national reconciliation, too.

392

Chapter 7

the ICTR, has prosecuted those responsible for serious violations of international humanitarian law and has effectively redressed those violations.243 It is clear from the ICTY website244 that not every prosecution has been of the most serious violators of international humanitarian law, that some of the worst offenders are still at large (although that is hardly the fault of the Tribunal), and that the proceedings take a very long time to come to trial and that the subsequent trial is very drawn out.245 In some of the cases, the pre-trial detention and the length of the trial itself would be in breach of international human rights law if it was taking place in a State.246 Not only does the delay prejudice the accused, it denies redress in the form of judgment against the perpetrators to the victims of these crimes. It would be wrong to criticize the tribunals for not doing something for which they were not designed or for which there not given the power, but judgments in the ICTY and ICTR cannot provide compensation to victims and the tribunals are never going to produce a full record of the conﬂict that can be agreed by all sides so as to allow the States to move on247 – if the restoration of peace and national reconciliation was an objective, these other functions need to have been set up by the Security Council separate from the ad hoc tribunals. Where it is more legitimate to criticize the Security Council is in not recognizing that the remoteness of the ICTY and ICTR from the scene of the crimes, The Hague and Arusha respectively, although essential at the time they were established, would mean that the popula-

243

244 245

246

247

Some of the information that follows came from a paper delivered by Ralph Zacklin, Assistant Secretary-General for Legal Affairs, United Nations, at Wilton Park in September 2003. His comments were personal and should not necessarily be read as reﬂecting the views of the United Nations. http://www.un.org/icty/index.html The Prosecutor v Zoran Kupreski,c, Mirjan Kupreski,c, Vlatko Kupreski,c, Drago Josipovic, Dragan Papic, Vladimir Santic, also known as “Vlado”, IT-95–16 “Lasva Valley”, Judgment 14 January 2000, the accused petitioned the ICTY before surrendering because they were afraid of the lengthy delays (paragraph 6). The Trial Chamber sat for 111 days beginning on 17 August 1998 – judgment was delivered on 14 January 2000. The ICTR is worse – in The Prosecutor v Théoneste Bagosora, ICTR-96–7–DP, there is a continuation of detention on remand dating from 18 June 1996: the hearing of motions commenced on 30 August 2001, the trial did not start until 2 April 2002, and it is still continuing (checked 20 January 2006). NB. Article 21.4(c) of the ICTY Statute/ Article 20.4(c) of the ICTR Statute state that the accused is entitled to trial without undue delay. It is noticeable that the facts on which the judgments are based are much fuller than would be the case in domestic trials, as if the judges recognize the need to report what happened and the context of these crimes – nb. see also, Wilson, Judging History: the Historical Record of the International Criminal Tribunal for the former Yugoslavia, 27 HRQ 908 (2005). While the ICTY and ICTR cannot award compensation to victims, they can both “order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners” – Article 24.3 ICTY, Article 23.3 ICTR. Under Rule 106 of the Rules of Procedure and Evidence of both the ICTY and ICTR, where an accused is found guilty, the Registrar shall forward the judgment to the competent authorities of the State and the victim can seek compensation through the national courts and the judgment shall be ﬁnal and binding with respect to criminal responsibility. See also, Symons, The Inherent Powers of the ICTY and ICTR, 3 ICLR 369 (2003).

Responding to War Crimes, Crimes Against Humanity and Genocide

393

tions would not feel part of the process – it is slightly better in the former Yugoslavia, but most people in Rwanda are not fully aware of the Arusha process. Justice needs to be seen to be done.248 Another problem with the international criminal tribunals has been their cost. Justice never comes cheap and there are problems at the opposite extreme, as will be seen, but they now cost over $200 million per year and almost $1.5 billion has been spent on them since their establishment. It is little wonder that the Security Council has started the process of bringing the tribunals to an end. UNSC Resolution 1503 (2003) has again reafﬁrmed249 the completion strategies for both ad hoc tribunals: that they ﬁnish investigations by the end of 2004, trials at ﬁrst instance by the end of 2008, and all work in 2010250 – indictments for those not yet apprehended are drafted in such a way that individual charges can readily be dropped in order of least seriousness the nearer the deadline for completion of trials approaches. Thus, at one level the ad hoc tribunals can be seen as too slow for both the perpetrator and the victims, an inadequate response to all the problems of post-conﬂict resolution, too remote and too expensive. To leave it at that, however, would be unfair in the extreme. The tribunals have advanced international humanitarian law to new levels, developing its scope more quickly than could ever have been anticipated, particularly with respect to individual criminal responsibility in noninternational armed conﬂicts. Furthermore, the understanding of genocide has progressed immeasurably.251 And such advances apply not just to international criminal tribunals, but to domestic courts applying universal jurisdiction. The fact that the tribunals were established by the Security Council under Chapter VII gave them the authoritative status necessary to achieve these results. Moreover, the creation of these Chapter VII courts has provided the base for the subsequent development of other international criminal tribunals through more consensual means along with a more integrated approach in relation to the domestic criminal law system. Their like will never, in all probability, be seen again, but the ICTY and ICTR paved the way for the acceptance of an international response to prosecuting the crimes that arise in situations of conﬂict. Without them, impunity would still reign.

248

249 250

251

Nsanzuwera, The ICTR Contribution to National Reconciliation, 3 JICJ 944 (2005). See also the discussion of the gacaca courts in Rwanda, below. Repeated in UNSC Res.1534 (2004). Raab, Closing down the ICTY, 3 JICJ 82 (2005). As the deadlines approach, some trials are being transferred to national courts, but that is not without its own set of problems resulting from differences between the Tribunals’ jurisdictional competence and domestic criminal law – see the potential transfer of Michel Bagaragaza from the ICTR to Norway where, instead of facing trial for genocide, he will have to be charged with being an accessory to homicide: The Guardian p. 18, 17 FEB 2006. E.g. The Prosecutor v Jean-Paul Akayesu, Case No.ICTR-96–4–T, 2 September 1998.

394

Chapter 7

c. Mixed or Hybrid Tribunals252 Originally planned for Cambodia to deal with the past history of atrocities, that particular tribunal never came to fruition, but a hybrid court has been established for Sierra Leone. Hybrid courts respond to two of the criticisms of the ICTY and ICTR, that is, that they were too remote and too expensive. The remoteness issue is addressed by establishing the court in Freetown, Sierra Leone, and by providing it with a mixed bench made up of Sierra Leonean and international judges, hence, in part, its hybrid nature. The costs issue was meant to be solved by giving it a ﬁxed timeframe in which to carry out its functions and effectively making it responsible for raising its own funds. In addition, a truth and reconciliation commission was established to operate alongside the court in order to write the history of the conﬂict, something which no judicial body is designed to do. The Special Court for Sierra Leone (SCSL) is not a United Nations organ,253 but was established by agreement between the United Nations and the then government of Sierra Leone. In June 2000, the President of Sierra Leone wrote to the Security Council asking it to establish a court for the prosecution of crimes perpetrated during the conﬂict in his country. The Security Council asked the Secretary-General to negotiate an agreement with the government to create a statute for an independent court.254 The agreement was signed in January 2002 and was ratiﬁed by the Sierra Leonean government in March 2002.255 The Statute of the SCSL was annexed to the agreement. Not only do local and international judges, the latter forming the majority, sit in the Trial Chambers and the Appeals Chamber,256 they apply international crimes,257 such as crimes against humanity, violations of common Article 3 and Additional Protocol II, and other serious violations of international humanitarian law, as well as crimes under the law of Sierra Leone.258 As such, 252 253

254

255

256 257 258

See Dickinson, The Promise of Hybrid Courts, 97 AM.J INT’L L 295 (2003). There is an argument that re-establishing the rule of law and post-conﬂict justice should be part of every UN peacekeeping operation and, as such, the SCSL should have been part of UNAMSL, but this turned out to be unrealizable. See also, Jones et al., The Special Court for Sierra Leone, 2 JICJ 211 (2004). UNSC Res.1315 (2000) of 14 August 2000. 1. Requests the Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with this resolution, and expresses its readiness to take further steps expeditiously upon receiving and reviewing the report of the Secretary-General . . .; See also, the Secretary-General’s report, S/2000/915, 4 October 2000. Supplement to the Sierra Leone Gazette Vol. CXXX. No II, 7 March 2002, The Special Court Agreement, 2002, Ratiﬁcation Act, 2002. On unsuccessful challenges to the validity of the Court because either the United Nations could not delegate such functions or because the Sierra Leonean government acted unconstitutionally, see Prosecutor v Fofana, Case No.SCSL-2004–14– AR72(E), 25 May 2004; Prosecutor v Gbao, Case No.SCSL-2004–15–AR72(E), 25 May 2004; Prosecutor v Kondewa, Case No.SCSL-2004–14–AR72(E)/ SCSL-04–14–PT, 25 May 2004. Article 2 of the Agreement. Articles 2–4, Statute. See, Article 5, Crimes under Sierra Leonean law

Responding to War Crimes, Crimes Against Humanity and Genocide

395

the SCSL is much less remote than the ICTY and ICTR. Furthermore, having been agreed to by the government, it should not suffer the lack of co-operation faced by the ICTY and ICTR in their dealings with States from the former Yugoslavia and Rwanda, respectively.259 Nevertheless, the SCSL is not without its own problems.260 The agreement provides in Article 6 that the expenses of the Court “shall be borne by voluntary contributions from the international community”. As forecast by the SecretaryGeneral,261 the voluntary contributions have not been as forthcoming as had been hoped and the expected costs, which anyway turned out to be a serious underestimate, have not been fully met.262 Moreover, while it is inﬁnitely less remote than the ICTY and ICTR, money spent on the SCSL is not going to directly help with the restoration of a functioning judiciary and legal system for Sierra Leone as a whole. Another issue is that of complexity. This operates at several levels. The choice of offences to be within the jurisdiction of any such court or tribunal has to speciﬁc to the crimes perpetrated during the conﬂict, but given that the Statutes for the ICTY, ICTR and International Criminal Court all existed when that for the SCSL was drafted, one could have hoped that common elements would be replicated – between 1993 and 2002, four different deﬁnitions of crimes against humanity emerged, in some ways improving on earlier errors, such as removing the link

259

260

261

262

The Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law: a. Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): i. Abusing a girl under 13 years of age, contrary to section 6; ii. Abusing a girl between 13 and 14 years of age, contrary to section 7; iii. Abduction of a girl for immoral purposes, contrary to section 12. b. Offences relating to the wanton destruction of property under the Malicious Damage Act, 1861: i. Setting ﬁre to dwelling – houses, any person being therein, contrary to section 2; ii. Setting ﬁre to public buildings, contrary to sections 5 and 6; iii. Setting ﬁre to other buildings, contrary to section 6. Which is fortunate given that the SCSL is not a Chapter VII Tribunal and so cannot rely on the mandatory character of a Security Council Resolution. More pertinently, while under Article 8.1 of the Statute, the SCSL has concurrent jurisdiction with domestic Sierra Leonean courts, Article 8.2 gives the former primacy, so, without governmental endorsement, that could have given rise to unedifying stand-offs. Including the death in custody whilst awaiting trial of Foday Sankoh, the principal architect of the civil war. His Report, S/2000/915, states that a “ﬁnancial mechanism based entirely on voluntary contributions will not provide the assured and continuous source of funding which would be required to appoint the judges, the Prosecutor and the Registrar, to contract the services of all administrative and support staff and to purchase the necessary equipment”. (paragraph 70). He preferred assessed contributions – paragraph 71. See UNSC Res.1537 (2004) calling on those who have made pledges to fulﬁl their commitment and supporting the Secretary-General’s request to the General Assembly to provide some ﬁnances out of the regular budget – paragraph 9.

396

Chapter 7

between crimes against humanity and an armed conﬂict that had been incorporated in Article 5 of the ICTY Statute, but in others the difference is inexplicable.263 Such differences, while generally minor in effect, do not allow for a clear linear development of individual criminal responsibility in international law. Another cause of complexity at the SCSL arises from the amnesty granted in the Lomé Peace Agreement of 7 July 1999.264 Article IX – Pardon and Amnesty 1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon. 2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement. 3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no ofﬁcial or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conﬂict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality.

Under Article 1, the SCSL has temporal jurisdiction for Statute crimes committed after November 1996. UNSC Resolution 1315 (2003) recognized in its preamble that while the Special Representative of the Secretary-General had put his signature to the Lomé Peace Agreement, he appended, [A] statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.

263

264

For instance, persecution is a separate crime within crimes against humanity under Article 5 of the ICTY Statute, it is an essential requirement of all crimes against humanity under Article 3 of the ICTR Statute, it is a separate crime under Article 7 of the Rome Statute, although it must be connected to one of the other crimes under the Statute, and it is again a separate and discrete crime under Article 2 of the SCSL Statute, although the list of grounds of persecution does not coincide with that in any other Statute – why was gender dropped from the list that is found in Article 7 of the Statute of the International Criminal Court? Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé Peace Agreement), S/1999/777, 7 July 1999, http://www.sc-sl.org/lomeaccord.html.

Responding to War Crimes, Crimes Against Humanity and Genocide

397

Furthermore, Article 10 of the Statute of the SCSL asserts that an amnesty shall not be a bar to prosecution of the crimes set out in Articles 2 to 4.265 Given, however, that the SCSL is a hybrid court, can its Statute ignore a prior agreement made by the government, even if the United Nations objected at the time? The Appeals Chamber of the SCSL held that the Lomé amnesty did not vitiate its jurisdiction over the crimes set out in the Statute.266 [The] amnesty granted by Sierra Leone cannot cover crimes under international law that are the subject of universal jurisdiction. In the ﬁrst place, it stands to reason that a state cannot sweep such crimes into oblivion and forgetfulness which other states have jurisdiction to prosecute by reason of the fact that the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation (sic.) erga omnes. (footnote omitted)

The ﬁnal issue in relation to which there is complexity is the interrelationship between the SCSL and the National Truth and Reconciliation Commission. Such procedural matters are beyond the scope of this paper, but the sight of the TRC joining a complaint by an accused to the SCSL about how he could give his testimony to the TRC did not give the impression of a well-thought through process.267 The ﬁnal problem with the hybrid SCSL is in some ways the most fundamental. The conﬂict in Sierra Leone had international elements, in that the rebel movements garnered support from some neighbouring States. In March 2003, an indictment was issued against Charles Taylor, then President of Liberia, for crimes under Articles 2, 3 and 4 of the Statute. While Article 1 only provides the hybrid court with territorial jurisdiction over crimes committed in Sierra Leone, Article 6 provides for individual criminal responsibility for any “person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, 265 266

267

Although, apparently, it is effective with respect to crimes under Sierra Leonean law – Article 5. Prosecutor v Kallon and Kamara, Case Nos.SCSL-2004–15–AR72(E), SCSL-2004–15– AR72(E), 13 March 2004, paragraph 71, at p. 29. The Court based its view on CASSESE, INTERNATIONAL CRIMINAL LAW, 2003, p. 315: There is not yet any general obligation for States to refrain from amnesty laws on these crimes. Consequently, if a State passes any such law, it does not breach a customary rule. Nonetheless if a court of another State having in custody persons accused of international crimes decide (sic.) to prosecute them although in their national State they would beneﬁt from an amnesty law, such court would not thereby act contrary to general international law, in particular to the principle of respect for the sovereignty of other States. By its decision of 4 November 2003, The Prosecutor v Norman, Kallon and Gbao, SCSL2003–08–PT, the Appeals Chamber found that it could hear preliminary motions on points of law without the Trial Chamber having ﬁrst deliberated on those same issues. SCSL-03–08–PT-122 – Norman – Decision on Appeal by TRC and accused against the decision of his Lordship Justice Bankole Thompson to deny the TRC request to hold a public hearing with Chief Norman – 28 November 2003, and the SCSL press statement of 3 December 2003 responding to statement of TRC. Robin Vincent, Registrar to the SCSL, subsequently assured the author in 2005 that such differences had now been resolved. See also, Kelsall, Truth, Lies, Ritual: Preliminary Reﬂections on the Truth and Reconciliation Commission in Sierra Leone, 27 HRQ 361 (2005).

398

Chapter 7

preparation or execution of a crime referred to in articles 2 to 4”; Article 6.2 makes ofﬁcial status as Head of State irrelevant. However, the ICJ in the Arrest Warrant case268 held that acting Heads of State were immune from domestic jurisdiction, only international courts could try them. Nor did the resignation of Charles Taylor render the point moot as to whether hybrid courts are sufﬁciently international.269 If its domestic character were to predominate, then according to the ICJ the warrant should never have been issued and would have to be cancelled. 76. In the present case, ‘the situation which would, in all probability, have existed if [the illegal act] had not been committed’ cannot be re-established merely by a ﬁnding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated. (emphasis added)

On the other hand, given that no State was ever likely to be willing to take a case to the ICJ on Charles Taylor’s behalf, it fell to the SCSLAppeals Chamber to determine its own jurisdiction.270 Unsurprisingly, the SCSL decided that it was not part of the judicial system of Sierra Leone and was thus an international court.271 42. We come to the conclusion that the Special Court is an international criminal court. The constitutive instruments of the court contain indicia too numerous to enumerate to justify that conclusion. To enumerate those indicia will involve virtually quoting the entire provisions of those instruments. It sufﬁces that having adverted to those provisions, the conclusion we have arrived at is inescapable.

d. The Third Generation – Discrete Domestic Courts272 Although they are discussed together here, there is no overarching process under which these courts have been designed as part of some common plan.273 Cambodia

268

269

270

271

272

273

Arrest Warrant of 11 April 2000 (DRC v Belgium), General List No. 121, ICJ 14 February 2002, paragraph 61. The mere fact that the SCSL was established in an agreement with the United Nations is not sufﬁcient given the United Nations’ involvement in the establishment of the Cambodian Extraordinary Chambers, discussed below. Nor does the presence of international judges sufﬁce, since they exist in the Kosovo. The fact it is funded by the international community separate from the re-establishment of the legal system in Sierra Leone may suggest it is not domestic in the sense of the third generation courts. The principle of la compétence de la compétence – see paragraphs 18 et seq. of Tadi,c, Case No.IT94–1–AR72 (1995). Prosecutor v Taylor, Case No.SCSL-2003–01–AR72(E), 31 May 2004, at paragraphs 37–42. Just because it is not a domestic court does not mean that it is necessarily an international court within the meaning of the Arrest Warrant Case – it could be a hybrid court. ROMANO, NOLLKAEMPFER AND KLEFFNER, INTERNATIONALIZED CRIMINAL COURTS, 2004. The somewhat haphazard nature of the evolution of third generation courts can be seen from the

Responding to War Crimes, Crimes Against Humanity and Genocide

399

ﬁrst asked the United Nations in 1997 about establishing a court akin to the ICTY/ICTR to try Khmer Rouge leaders for the crimes committed between 1975 and 1979.274 After some initial planning, the UN and Cambodia eventually agreed in 2000 to establish a hybrid court with national and international judges, only for the Cambodian government in 2001 to pass a new law setting up ‘Extraordinary Chambers’ within the Cambodian legal system; the UN claimed these Chambers allowed for no UN involvement and that the prosecutor would not necessarily be able to take action against persons who had received an amnesty. In early 2002, the Secretary-General withdrew from negotiations with the Cambodian Prime Minister on the basis that it was not certain that the Extraordinary Chambers would be independent and impartial. However, UN General Assembly Resolution 57/228 of 18 December 2002 urged the Secretary-General to reconsider and, following further discussions, a draft agreement was signed on 17 March 2003.275 It provides for international judges to be appointed to the Extraordinary Chambers, but they are in a minority, and the Chambers will have jurisdiction under Article 1 to bring “to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979”. The crimes are set out in Article 9: The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as deﬁned in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as deﬁned in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as deﬁned in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.276

The agreement has, nevertheless, been heavily criticised by Human Rights Watch and Amnesty International, and even the Secretary-General’s own Report of 31 March 2003 contained doubts about its effective implementation.277

274

275

276

277

fact that bringing the work of the ICTY to an end demands a “War Crimes Chamber” in BosniaHerzegovina, yet its establishment is in doubt for lack of funding – see UNSC Res. 1503 (2003): 5. Calls on the donor community to support the work of the High Representative to Bosnia and Herzegovina in creating a special chamber, within the State Court of Bosnia and Herzegovina, to adjudicate allegations of serious violations of international humanitarian law. For the full story, see Report of the Secretary-General on Khmer Rouge Trials, UNGA Doc.A/57/769, 31 March 2003. The dates rule out the use of the International Criminal Court. Approved by the Cambodian cabinet on 28 March and by the General Assembly on 13 May 2003, UNGA Res.57/228B. It is good to see that no new deﬁnitions of crimes have been created, particularly that it incorporates the International Criminal Court’s deﬁnition of crimes against humanity. Article 2.2 of the Agreement speaks volumes where it expressly notes that the Vienna Convention on the Law of Treaties, 1969, particularly Articles 26 and 27 dealing with pacta sunt servanda and the non-invocability of domestic law to justify failure to perform, shall apply. See also, Williams,

400

Chapter 7 30. Doubts might therefore still remain as to whether the provisions of the draft agreement relating to the structure and organization of the Extraordinary Chambers would fully ensure their credibility, given the precarious state of the judiciary in Cambodia.278

Human Rights Watch and Amnesty International have pointed out a series of problems.279 The concerns of the human rights community focus on several matters: the majority granted to Cambodian judges in each Chamber given the weakness of the judiciary and the political pressure that might be brought to bear; the requirement for more than a simple majority in decision-making under Articles 4 and 7.4 that seems implicitly to assume the Cambodian judges will vote en bloc as opposed to deciding on the facts and law; the failure to exclude outright any prior amnesty;280 the very confused state of Cambodian criminal procedure rules which have been applied under Article 12.1;281 the failure to apply in full the human rights guarantees in favour of the accused under the ICCPR, surprising given that Cambodia is a party thereto; and the very real fear that funds for the Extraordinary Chambers will be diverted from monies available to rebuild the Cambodian legal system in general.282 If one of the criticisms of the ICTY and ICTR was that the Security Council imposed its will on States such that they had to co-operate with the ad hoc tribunals although they had not participated in their creation, then the Cambodian Extraordinary Chambers give too much weight to the State. The General Assembly will only have itself to blame if, in line with all the warnings of the SecretaryGeneral, the trials turn out to be ﬂawed and the United Nations is tainted through its participation in the process. East Timor, or Timor Leste as it now is, presents a completely different scenario, since the Special Panels were created when the United Nations was running the

278

279

280

281

282

The Cambodian Extraordinary Chambers – A Dangerous Precedent for International Justice?, 53 INT’L & COMP.LQ 227 (2004). §IV.F deals with the UN’s withdrawal if Cambodia fails to perform, incorporated in Article 28 of the Agreement. HRW, Serious Flaws: Why the UN General Assembly should require changes to the Draft Khmer Rouge Tribunal Agreement. http://hrw.org/asia/cambodia.php, 30 April 2003; Amnesty International, Kingdom of Cambodia Amnesty International’s position and concerns regarding the proposed “Khmer Rouge” tribunal, AI Index: ASA 23/005/2003, April 2003. On the positive side, they do note that the death penalty is no longer available – Article 10. See Article 11.2: The United Nations and the Royal Government of Cambodia agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers. Article 12.1 hardly reﬂects a model of clarity: The procedure shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level. The United Kingdom has promised funds – FCO Press Release 27 January 2005.

Responding to War Crimes, Crimes Against Humanity and Genocide

401

Transitional Administration after Indonesian withdrawal. The United Nations Transitional Administration in East Timor (UNTAET) was established by UNSC Resolution 1272 (1999) and its mandate included: 2(a) To provide security and maintain law and order throughout the territory of East Timor; (b) To establish an effective administration; (c) To assist in the development of civil and social services;

By UNTAET Regulation 2000/15,283 the Special Panels were set up in Dili District Court. Given that the entire East Timorese judicial structure was being established at the same time,284 the interplay between the ordinary courts and the Special Panels was less than clear and the panels undoubtedly diverted resources from the ordinary courts at a time when the rule of law in general should probably have been to the fore.285 The Special Panels were appointed with a majority of international judges.286 They were established with jurisdiction over a mix of international and domestic crimes;287 genocide, crimes against humanity, war crimes and torture;288 murder and sexual offences under the applicable Penal Code.289 By May 2005, 84 people had been convicted of such crimes.290

283

284

285

286 287 288

289

290

6 June 2000. See de Bertodano, Current Developments in Internationalized Courts: East Timor – Justice Denied, 2 JICJ 910 (2004). See especially UNTAET Reg 2000/11. See Hayden, Ideals and Realities of the Rule of Law and Administration of Justice in Post-Conﬂict East Timor, 8 INT’L PEACEKEEPING: YB.INT’L PEACE OPS.65 (2004). There is also a parallel truth, reception and reconciliation process which was due to ﬁnish on 7 July 2005, but which was extended for a further six months – Secretary-General, End of mandate report of the Secretary-General on the United Nations Mission of Support in East Timor (for the period from 17 February to 11 May 2005), 12 May 2005, S/2005/310, paragraph 21. It submitted its report on 31 October 2005, after ﬁve years – Secretary-General Report, S/2006/24, 17 January 2006. Indonesia and Timor Leste established a TRC with respect to the 1500 deaths in 1999 in August 2005 – S/2006/24, paragraph 11. Article 22, 2000/15. Sections 4 to 9. The deﬁnitions of genocide, crimes against humanity and war crimes are taken from Articles 6 to 8 of the Statute of the International Criminal Court. The deﬁnition of torture is taken from Article 1 of the UN Convention Against Torture, 23 INT.LEG.MAT.1027 (1984) and 24 INT.LEG.MAT.535 (1985), except that the perpetrator does not have to be a public ofﬁcial or someone acting in an ofﬁcial capacity. The Special Panels are deemed to have universal jurisdiction over these crimes, although the deﬁnition of universal jurisdiction in Section 2.2 of Regulation 2000/15 is unusual and very restricted: 2.2 For the purposes of the present regulation, “universal jurisdiction” means jurisdiction irrespective of whether: (a) the serious criminal offence at issue was committed within the territory of East Timor [territorial jurisdiction]; (b) the serious criminal offence was committed by an East Timorese citizen [active personality principle]; or (c) the victim of the serious criminal offence was an East Timorese citizen [passive personality principle]. By Section 2.3 of 2000/15, the Special panels only have exclusive jurisdiction over crimes in Sections 8 and 9 with respect to the period 1 January to 25 October 1999. Secretary-General’s Report of 12 May 2005, S/2005/310, paragraph 20.

402

Chapter 7

While East Timor gained total independence on 20 May 2002, much of the work of UNTAET was passed on to its successor, the United Nations Mission in Support of East Timor (UNMISET).291 However, while prosecuting the serious crimes that occurred in East Timor remained a priority,292 a number of problems arose. Amongst the most problematic was that the Court of Appeal in Public Prosecutor v Armando dos Santos decided that the applicable law prior to 25 October 1999 was Portuguese, not Indonesian as had been believed, and that prosecution of serious crimes under UNTAET Regulation 2000/15 was unconstitutional because it violated the nullem crimen principle.293 Further appeals from these rulings as well as new legislation before Parliament brought clarity to this situation, but it revealed yet again that there are problems in exercising post-conﬂict justice through domestic trials, even if there is international involvement through the judiciary and some of the laws prosecuted.294 More serious, however, than the decisions of the Court of Appeal, was the innate problems of the Special Panels. Many of the accused were outside the jurisdiction295 and, without a Chapter VII mandate, there was no compulsion to comply with requests. Secondly, the lack of enough qualiﬁed judges caused delays in the hearings such that serious crimes trials continued after the end of UNMISET’s mandate,296 let alone any appeals. The delays are so bad that the Secretary-General has admitted that they render detentions illegal.297 If there is one constant in post-conﬂict justice since the inception of the ICTY, it is that the bureaucrats seriously underestimate the time necessary to carry out the prosecutions and any appeals, and the concomitant expenses for which they ought to budget. The position in Kosovo is slightly different. Like East Timor, the United Nations established a transitional administration following the withdrawal of the forces of the then Federal Republic of Yugoslavia.298 However, Kosovo is still a UN transi-

291

292

293 294

295

296

297 298

See UNSC Res.1410 (2002). UNSC Res.1480 (2003) extended UNMISET’s mandate to 20 May 2004. See also, UNSC Res.1543 (2004) and UNSC Res.1573 (2004). From May 2005, UNMISET was replaced by the United Nations Ofﬁce in Timor-Leste (UNOTIL) – UNSC Res.1599 (2005). See UNSC Res.1272 (1999) and paragraph 8 of Res.1338 (2001), reiterated in the SecretaryGeneral’s Report of 6 October 2003, S/2003/944, Annex 1. See Secretary-General Report of 6 October 2003, S/2003/944, paragraph 26. NB. The Cambodian Extraordinary Chambers are subject to amendment by the Cambodian Parliament, although such action might breach the agreement negotiated by the Secretary-General. The Parliament in Timor Leste reversed the ruling in dos Santos that prior law was Portuguese and provided that it was, and had always been, Indonesian. To put it in perspective, of the 23 cases before the Special Panels, by 2003, 22 were affected by the fact that the accused (228 persons) were outside Timor Leste. See Secretary-General Report of 6 October 2003, S/2003/944, paragraphs 26–29 and Annex 1 (p. 14). General Wiranto was indicted, for example, but Indonesia refused to surrender him – The Guardian p. 12, 26 FEB 2003. UNSC Res.1543 (2004) provided that the work of the Special Panels was to be handed over to Timorese judges on 20 May 2005. S/2003/944, Annex 1, p. 13. UNSC Res.1244 (1999).

Responding to War Crimes, Crimes Against Humanity and Genocide

403

tional administration (UNMIK) and the Security Council asserted that its decision did not affect the sovereignty and territorial integrity of FRY. Moreover, as part of the former Yugoslavia, crimes committed within Kosovo are prosecutable before the ICTY.299 Unlike UNTAET in East Timor, UNMIK did not create specialised chambers,300 but international judges were included in the general court structure.301 They were integrated into the Kosovo judicial process at all levels and, when sitting in panels, sit alongside Kosovar colleagues. Given that the international judges are part of the normal court structures, funding for them has not been a drain on the general re-establishment of the rule of law and justice in Kosovo. Problems to do with the administration by the United Nations of Kosovo in general necessarily impact upon the work of the international judges and prosecutors, but there is nothing intrinsic in their role that would be improved by the creation of special chambers. e. Victor’s Justice Although a charge that could be levelled against the Nuremberg and Tokyo trials post-WWII, one might have thought that since the 1990s, post-conﬂict courts based on victor’s justice should have had both feet ﬁrmly planted in the grave. However, for a variety of reasons, Kigali was not happy with the ICTR as established by the Security Council. As such, it has not co-operated with the Tribunal and has prosecuted those accused of genocide and other serious crimes before its domestic courts. At one point, the number awaiting trial was in six ﬁgures. While the exercise of territorial jurisdiction after a non-international armed conﬂict is hardly a radical new response to international crime, the numbers involved meant that the Rwandan government eventually decided to employ the traditional gacaca courts. Gacaca courts are a community based justice system where the accused has to appear before the people in his community.302 As an approach that avoids the victim feeling remote from the administration of justice, a charge levelled against Arusha, gacaca is to be welcomed.303 However, the very nature of the conﬂict in

299

300

301

302 303

See The Prosecutor v Milo·evi,c, IT-02–54, second amended indictment of 29 October 2001, and The Prosecutor v Limaj, Bala and Musliu, IT-03–66, amended indictment of 7 March 2003 (the KLA case). There was a proposal to create a Kosovo War Crimes Court, but it never came to fruition – see BBC News Online, 26 April 2000, http://news.bbc.co.uk/1/hi/world/europe/727531.stm. See UNMIK Regulation 2000/6, as amended by Regulation 2000/34, and Regulation 2000/64. According to the UNMIK Pillar 1, Police and Justice Report of November 2002, “the problem of ethnic bias, both actual and perceived, is deeply rooted in Kosovo and is one of the main reasons for the presence of international judges and prosecutors. They are also indispensable to ﬁght organised crime, as Kosovo local judges are vulnerable and susceptible to undue pressures” – §2.1.4, p. 13. See The Guardian p. 17, 5 OCT 2001. Gacaca sits somewhere between a court and a truth and reconciliation process.

404

Chapter 7

1994 raises doubts about the appropriateness of gacaca.304 Given that genocide took place, many of those who would be able to give evidence in relation to any accused are dead.305 Moreover, many women who survived the genocide now have to publicly speak about rape and other sexual assaults they suffered if gacaca is to offer redress. There are also allegations of intimidation of witnesses.306 Having regard to the scale and nature of the genocide in 1994, neither the ICTR nor the ordinary Rwandan courts could cope, but gacaca raises as many questions as it solves.307 The Iraqi Special Tribunal was established on 10 December 2003 by the Iraqi Governing Council,308 but drafted by experts from the coalition governments, and it has more than a faint odour of mildew associated with such an outdated idea as victor’s justice.309 It has jurisdiction over genocide, crimes against humanity, war crimes and certain Iraqi laws (Articles 11–14); the ﬁrst three crimes are nearly verbatim copies of the same crimes under the Statute of the International Criminal Court.310 It can impose the death penalty.311 The Tribunal has power to appoint non-Iraqi judges, but there is no obligation so to do and so far no foreign judges have been appointed. Article 3 Fifth: The Council of Ministers may, if deemed necessary, based upon a proposal by a President of the Court, appoint non-Iraqi judges who have experience in conducting criminal trials stipulated in this law, and who are of very high moral character, honest and virtuous to work in the Court, in the event that a State is one of the parties in a complaint, and the judges shall be commissioned with the help of the International Community and the United Nations.312 304 305 306 307

308

309 310

311

312

Schabas, Genocide Trials and Gacaca Courts, 3 JICJ 879 (2005). A strange sort of victor’s justice, where the accused beneﬁts from the lack of witnesses. The Guardian p. 18, 18 DEC 2003. Fierens, Gacaca Courts: Between Fantasy and Reality, 3 JICJ 896 (2005). See also, The Guardian G2, pp. 1–9, 29 MAR 2004; The Guardian p. 16, 29 JUL 2005. The Governing Council was appointed by Coalition Provisional Authority Administrator L. Paul Bremer on July 13, 2003. See also, UNSC Res. 1500 (2003) and 1511 (2003). See now, Law No. (10) 2005, Law of Iraqi Higher Criminal Court. See generally, 2 JICJ 313–52 (2004). Article 14 contains crimes very speciﬁc to the history of Iraq under Saddam Hussein: Article 14 The Court shall have the power to prosecute persons who have committed the following crimes: First: Intervention in the judiciary or the attempt to inﬂuence the functions of the judiciary. Second: The wastage and squander of national resources, pursuant to, item G of Article 2 of the Law punishing those who conspire against the security of the homeland and corrupt the regime No. 7 of 1958. Third: The abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958. Fourth: If the court ﬁnds a default in the elements of any of the crimes stipulated in Articles 11, 12, 13 of this law, and it is proved to the Court that the act constitutes a crime punishable by the penal law or any other criminal law at the time of its commitment, then the court shall have jurisdiction to adjudicate this case. Although the language of the Statute is indirect – see Article 24. See also, Bohlander, Can the IST sentence Saddam Hussein to death?, 3 JICJ 463 (2005). Under Article 7, the President of the IST can appoint non-Iraqi experts.

Responding to War Crimes, Crimes Against Humanity and Genocide

405

Some of the international human rights law standards applicable to arrest, detention and fair trial are incorporated in Article 19. In addition, the Rules of Procedure and Evidence also need to be read so as to obtain a full picture with respect to the fairness of the trial.313 Jurisdiction is, however, limited under the Statute of the Special Tribunal to Iraqi nationals and those ordinarily resident: Article 1 Second: The Court shall have jurisdiction over every natural person whether Iraqi or non-Iraqi resident of Iraq and accused of one of the crimes listed in Articles 11 to 14 below, committed during the period from July 17, 1968 and until May 1, 2003, in the Republic of Iraq or elsewhere, including the following crimes: A. The crime of genocide; B. Crimes against humanity; C. War crimes D. Violations of certain Iraqi laws listed in Article 14 below.

Undoubtedly, those members of the coalition forces who committed war crimes during the armed conﬂict or do so during the occupation shall be prosecuted under their own military codes, but for some of those due to appear before the Iraqi Special Tribunal, an international or, preferably, hybrid court for the trial would seem more appropriate so as to answer for all their crimes before the international community. There is an argument that if Saddam Hussein’s314 alleged failure to comply with the rulings of the Security Council and international law was sufﬁcient to justify the use of force by the international community, surely the international community has some interest in his prosecution beyond the jurisdiction of the Iraqi Special Tribunal.315 At the beginning of 2006, Saddam Hussein’s trial before the IST has hardly been a model of international criminal justice at its best.316

313

314

315

316

The President of the Court shall have the right to appoint non-Iraqi experts to act in an advisory capacity for the Criminal Court and the Cassation Panel. The role of the non-Iraqi nationals shall be to provide assistance with respect to international law and the experience of similar Courts (whether international or otherwise). The paneling of these experts is to be done with the help from the International Community, including the United Nations. The current version of the Rules of Procedure and Evidence were promulgated on 18 October 2005. See also, Zappalà, The Iraqi Special Tribunal’s Draft Rules of Procedure and Evidence: Neither Fish nor Fowl?, 2 JICJ 855 (2004). Bantekas, The Iraqi Special Tribunal for Crimes against Humanity, 55 INT’L & COMP.LQ 237 (2005). NB. Some of those arrested by coalition forces will also be entitled to the guarantees afforded to prisoners of war under the third Geneva Convention, 1949 – see Articles 82 et seq., especially Article 85. The transfer of Saddam Hussein by the coalition forces to the Iraqi interim government was unsuccessfully challenged at the European Court of Human Rights on the basis of potential violations of Articles 2 and 3 ECHR – see Press Release of the Registrar of the European Court of Human Rights No.337, 30 June 2004. See Bofaxe 266(E), Why Saddam Hussein Must Appear Before an Internationalised Tribunal, 12 August 2004. BOFAXE are published by the Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum: Ruhr-Universität Bochum, Germany. An international tribunal would not have faced as many criticisms regarding lack of fairness – BBC News website 4115976.stm, 2005/06/21 18:29:26. The Guardian p. 2, 14 JUN 2005; p. 15, 18 JUL 2005; p. 17, 6 OCT 2005; p. 13, 5 DEC 2005. The Guardian p. 16, 17 JAN 2006.

406

Chapter 7

f. International Criminal Court317 It may seem strange to have left the International Criminal Court to the last, but in one sense it is not like any of the other international or internationalized courts discussed above318 – rather, it is a permanent court that can be utilized whenever crimes within its competence have been committed, even by the Security Council if the latter so wished.319 The idea for an international criminal tribunal was not new and had been discussed by the International Law Commission in the 1950s. The pressure for this Court did not start from a desire to prosecute the crimes that eventually came within its jurisdiction, but rather narcotics offences.320 The International Criminal Court was eventually established by the Rome Statute of 17 July 1998 and has jurisdiction over “the most serious crimes of concern to the international community as a whole” committed by individuals321 after 1 July 2002.322 It has jurisdiction over the crimes set out in Article 5. Article 5.1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.323 317

318

319

320

321

322

323

Done at Rome, 17 July 1998, 37 INT.LEG.MAT.999 (1998) – as corrected by the procés-verbaux of 10 November 1998 and 12 July 1999. See CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002; Sarooshi, The Statute of the International Criminal Court, 48 INT’L & COMP.LQ 387 (1999); Commentary on Rome Statute, [1999–2000] ASIL PROC.172–343; Pellet, Pour la Cour Pénale Internationale, quand même! – Quelques remarques sur sa compétence et sa saisine, 1 ICLR 91 (2001). Cf. Jescheck, The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute 2 JICJ 38 (2004). The Security Council referred the situation in Darfur to the International Criminal Court under Article 13(b), discussed below. See also Clark, The Proposed International Criminal Court: Its Establishment and its Relationship with the United Nations, 8 CRIM LF 411 (1997). The United Nations and the International Criminal Court have established formal relations – Negotiated Relationship Agreement between the International Criminal Court and the United Nations, http://www.icc-cpi.int/library/asp/ICC-ASP-3–Res1_English.pdf. Equally, the European Union has entered into a formal arrangement, too – Agreement between the International Criminal Court and the European Union on cooperation and assistance, Council of the European Union, 14298/05. See Robinson, ‘The Missing Crimes’ in CASSESE, GAETA AND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2002, at pp. 497 et seq. Article 25 limits the Court’s competence to natural persons. They must have been 18 or older when they committed the offence – Article 26. As well as direct responsibility, Article 28 provides for responsibility of commanders and other superiors for failure to prevent breaches by subordinates of which they knew or ought to have known. Articles 11 and 126 – the Statute came into force sixty days after the sixtieth ratiﬁcation. Under Article 24, “[no] person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute”. In determining a case, the Court shall have regard to the applicable law as deﬁned in Article 21.

Responding to War Crimes, Crimes Against Humanity and Genocide

407

The crime of aggression proved impossible to deﬁne and it will be reconsidered at the Assembly of States Parties in 2009.324 Genocide under Article 6 is deﬁned in line with the 1948 Convention. Unlike the general provisions dealing with war crimes in the Statutes of the ICTY and ICTR,325 the Rome Statute lists ﬁfty crimes under Article 8,326 thirty-four speciﬁc to international crimes and sixteen applicable in non-international armed conﬂicts.327 Some of these crimes certainly advance what had been understood to give rise to individual criminal responsibility in time of armed conﬂict prior to 1998.328 Nevertheless, it is Article 7 dealing with crimes against humanity that gives rise to most problems, if only because it represents yet another different deﬁnition.329 Like the Statute of the ICTR, no armed conﬂict is

324

325

326

327

328 329

Article 21 – Applicable law 1. The Court shall apply: (a) In the ﬁrst place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conﬂict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as deﬁned in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. See Articles 5.2, 121 and 123. See also, Nollkaempfer, Concurrence between Individual Responsibility and State Responsibility in International Law, 52 INT’L & COMP.LQ 615 (2003); Grifﬁths, International Law, the Crime of Aggression and the Ius ad Bellum, 2 ICLR 301 (2002). Grave breaches and serious violations of the laws and customs of war under Articles 2 and 3 of the ICTY Statute, and violations of common Article 3 to the Geneva Conventions and of Protocol II under Article 4 ICTR. Under Article 124, a State upon ratiﬁcation can declare that it does not recognize the jurisdiction of the ICC over Article 8 crimes committed by its nationals or on its territory for a period of seven years. While that may sound proliﬁc, some acts for which accused have been found guilty in The Hague are not listed as crimes under the Rome Statute – see generally, Bothe, ‘War Crimes’, in CASSESE, GAETAAND JONES, THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY (2002), p. 379 at p. 387. See Article 8.2(b)(xxvi). Rome Statute of the International Criminal Court: Article 7 – Crimes against humanity 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

408

Chapter 7

needed, just that the crimes are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Like the ICTY Statute, persecution is a separate crime and not an essential element of every crime against humanity; on the other hand, persecution can only be charged “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”; thus, it is not a free standing crime. Where Article 7 represents a great improvement on its predecessors is that attack against a civilian population is deﬁned. (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identiﬁable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as deﬁned in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) ‘Extermination’ includes the intentional inﬂiction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafﬁcking in persons, in particular women and children; (d) ‘Deportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) ‘Torture’ means the intentional inﬂiction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) ‘Forced pregnancy’ means the unlawful conﬁnement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This deﬁnition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) ‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes,

Responding to War Crimes, Crimes Against Humanity and Genocide

409

‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.330

Given that crimes against humanity can be committed under the Rome Statute of the International Criminal Court by an organization, they could include terrorism. The jurisdictional competence of the International Criminal Court is set out in Articles 12 to 15,331 but it is less than clear and straightforward. There are three routes into the International Criminal Court. First, the Security Council can refer any case directly under Article 13(b).332 Secondly, subject to Article 12, a State Party can refer a situation under Article 13(a); Article 12.2 provides that the Court will only have jurisdiction if the State on the territory of which the crime occurred or the State of nationality of the accused is a party to the Rome Statute.333 The State Party refers the situation in which the crimes might have occurred to the Prosecutor under Article 14. So far, situations in Northern Uganda, the Democratic Republic of Congo and the Central African Republic have been referred and the Prosecutor has started investigations in the ﬁrst two.334 Finally, under Article 13(c), again subject to Article 12, the Prosecutor can initiate an investigation proprio motu. Article 15 governs the Prosecutors investigation proprio motu.335

330

331

332

333

334

335

male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above. Author’s footnote: Given that crimes against humanity have been explicitly removed from the sphere of armed conﬂicts, ‘attack’ could not be restricted to the meaning ascribed in Article 49 of Protocol 1, 1977. Under Article 16, the Security Council can tell the Court to defer investigation or prosecution for 12 months, renewable. The upper hand is with the Court because any of the P5 can, therefore, block an attempt to delay proceedings – Mokhtar, The ﬁne art of arm twisting: the United States, Resolution 1422 and the Security Council’s Deferral Power under the Rome Statute, 3 ICLR 295 (2003). Zappalà, Excluding the International Criminal Court via Security Council Resolutions for non-parties to the Rome Statute, 1 JICJ 671 (2003). Cryer and White, The Security Council and the International Criminal Court: Who’s Feeling Threatened, 8 INT’L PEACEKEEPING: Yb.INT’L PEACE OPS 143 (2004). The power was exercised with respect to peacekeepers – see UNSC Res.1422 (2002) and 1487 (2003). The deferral lapsed in 2004 – The Guardian p. 3, 26 JUN 2004. See the referral of the situation in Darfur, Sudan. Sudan is not a party to the Rome Statute. The investigation opened on 6 June 2005 – http://www.icc-cpi.int/cases/current_situations/ Darfur_Sudan.html. Article 12.3 provides as follows: If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. http://www.icc-cpi.int/cases.html. See also, El Zeidy, The Ugandan Government Triggers the First Test of the Complementarity Principle: an Assessment of the First State’s Party Referral to the ICC, 5 ICLR 83 (2005), for an unusual take on complementarity. There have been calls for the Prosecutor to investigate the situation in Colombia – See the report on the FIDH proposal, BBC News website 4633955.stm, 2005/06/29 15:22:18.

410

Chapter 7

Even if the investigation is started and the Security Council do not order a deferral under Article 16, the International Criminal Court only provides complementary jurisdiction. The principle of complementarity is set out in the tenth preambular paragraph and Articles 1 and 17. Article 17 sets out the working rules of complementarity.336 Article 17 – Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufﬁcient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustiﬁed delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

The Court defers to national competence over an accused, as might be expected in a tribunal established by States in international conclave, as opposed to ones created by the Security Council under Chapter VII.337 If a State with jurisdiction is willing and able to prosecute, the International Criminal Court must defer.338 In

336 337

338

The Court determines its competence for itself according to Article 19. Equally, the ICC requests surrender, but there is no Chapter VII obligation to comply, only the obligation that ﬂows from being party to a treaty! See Articles 86 and 89. Under Article 18, where there is a State referral or the Prosecutor initiated the case proprio motu, then if the Prosecutor decides to commence an investigation, the Prosecutor notiﬁes all States Parties and “those States which, taking into account the information available, would normally

Responding to War Crimes, Crimes Against Humanity and Genocide

411

addition, it is worth having a brief regard to Article 53. Even if it is decided that the Court is competent and can exercise its complementary jurisdiction, then the Prosecutor may still decide that there is: Article 53.2 . . . not a sufﬁcient basis for a prosecution because: . . . (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or inﬁrmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the PreTrial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. (emphasis added)

While such a decision is subject to the review of a Pre-Trial Chamber (article 53.3), it seems a strange idea that the most serious crimes should not be prosecuted “in the interests of justice”.339 It may be that the trial would not be practical in the circumstances, but justice would have little to do with failing to prosecute someone charged with genocide, crimes against humanity or war crimes. The Rome Statute sets out grounds that the accused can raise either to prevent the trial or as defences to the charges preferred.340 Article 20 provides for ne bis in idem unless the domestic trial was a sham.341 Articles 22 and 23 deal with nullum crimen and nulla poena. Superior orders is not a defence unless three conditions are met: Article 33.1 . . . (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.342

339

340

341

342

exercise jurisdiction over the crimes concerned”. Any such State can then inform the Court that it is carrying out the investigation, vitiating the jurisdiction of the International Criminal Court. One possible instance is amnesties. Stahn, Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court, 3 JICJ 695 (2005); Gavron, Amnesties in the light of developments in international law and the establishment of the ICC, 51 INT’L & COMP.LQ 91 (2002). Scalliotti, Defences before the ICC: substantive grounds for excluding criminal responsibility – Part 1, 1 ICLR 111 (2001); Part 2, 2 ICLR 1 (2002). Article 20.3 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Orders to commit genocide and/or crimes against humanity are always manifestly unlawful – Article 33.2.

412

Chapter 7

Mistake of fact or law may provide a defence according to Article 32. However, it is Article 31 that provides the most direct means to exclude criminal responsibility: the accused has a “mental disease or defect” so that s/he does not recognize the unlawfulness of the conduct; involuntary intoxication such that the accused does not appreciate the unlawfulness of her/his conduct; self-defence, broadly deﬁned; duress. This last defence, duress, will need to be interpreted with care. Article 31.1(d) only permits duress to be relied upon where there was threat of “imminent death or of continuing or imminent serious bodily harm” and the accused acted “necessarily and reasonably to avoid this threat, provided that the person [did] not intend to cause a greater harm than the one sought to be avoided”. The ﬁnal means by which an accused might avoid appearing before the ICC is to be found in Article 98 of the Rome Statute that has to be read with Article 27. Article 98 – Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can ﬁrst obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can ﬁrst obtain the cooperation of the sending State for the giving of consent for the surrender.

Article 98 prohibits the ICC from seeking the surrender of a fugitive where that would require the requested State to act inconsistently with claims by the alleged offender to State or diplomatic immunity or with other international obligations set out in treaty. Article 98.1 is a general restriction, but Article 98.2 is principally an issue vis à vis the United States.343 Article 98.1 seems to reﬂect the standard position of international law that certain State ofﬁcials are immune from jurisdiction without waiver – indeed, it is arguable that State immunity is ius cogens. However, Article 27, at ﬁrst blush, has removed this immunity. Article 27 – Irrelevance of ofﬁcial capacity 1. This Statute shall apply equally to all persons without any distinction based on ofﬁcial capacity. In particular, ofﬁcial capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government ofﬁcial shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 343

On the United States response to the International Criminal Court in general, see the various authors in 2 JICJ 1–37 (2004).

Responding to War Crimes, Crimes Against Humanity and Genocide

413

2. Immunities or special procedural rules which may attach to the ofﬁcial capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Such a reading of Articles 98.1 and 27, though, is too simplistic. Article 12 of the Statute needs to be borne in mind, too. Article 12 grants the ICC jurisdiction over crimes that occur in the territory of a State party or where the accused is a national of a State party. Thus, the national of a non-State party can be prosecuted before the ICC if s/he has committed an Article 5 crime on the territory of a State party.344 While a State party to the ICC can be said through ratiﬁcation to have impliedly waived immunity under Article 27,345 the same cannot be said of non-state parties. However, that ignores the nature of the crimes and the status of the International Criminal Court. The Article 5 crimes attract universal jurisdiction. As such, those crimes can be prosecuted by any State. It is the principles of immunity that mean that those with current immunity cannot be prosecuted by the domestic courts of another country; the Pinochet judgment makes it clear that those who no longer have immunity cannot claim exemption from prosecution in relation to Article 5 type crimes.346 Furthermore, according to the ICJ in the Arrest Warrant case, while acting Heads of State, Heads of Government and Ministers of Foreign Affairs have absolute immunity before the domestic courts of any other State, one way that impunity is avoided is through the competence of international courts to prosecute their crimes.347 Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special procedural rules which may attach to the ofﬁcial capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person’.

344 345

346

347

See, Akande, Jurisdiction of ICC over nationals of non-parties, 1 JICJ 618 (2003). See the Constitutional implications for France, The Treaty Establishing the International Criminal Court (Decision No.98–408 DC), 125 INT’L L REP.475 (French Constitutional Council, 2 January 1999). R v Bartle and the Commissioner of Police for the Metropolis and others, ex p.Pinochet [1998] 4 All ER 897, [2000] 1 AC 61 (Pinochet 1); R v Bartle and the Commissioner of Police of the Metropolis, ex p.Pinochet [1999] 2 All ER 97 (Pinochet 3). Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) General List No. 121, 14 February 2002, paragraph 61.

414

Chapter 7

It is arguable, therefore, that the nationals of non-States parties can be prosecuted before the ICC, even where they possess immunity. However, Article 98.1 is not aimed at the Court, but rather at the State where the accused is now to be found. The Court cannot proceed with a request to surrender under Article 89 where that would require the requested State to act inconsistently with its obligations under international law.348 Former holders of immunity are not within the protection of Article 98.1, but those who currently attract immunity are safe unless the State possessing the immunity is prepared to waive it. Nevertheless, if an acting Head of State or Government of a non-State party who was suspected of Article 5 crimes were to walk into the Court in The Hague, then the limits of the peremptory norm of State immunity as set out in the Arrest Warrant case suggest the Court would be competent to prosecute. Article 98.2 has given rise to a ﬂurry of treaties by the United States that basically prevent the other State surrendering United States nationals to the ICC.349 The United States originally signed the Rome Statute and, as such, was obliged under Article 18 of the Vienna Convention on the Law of Treaties “. . . to refrain from acts which would defeat the object and purpose of a treaty”. Encouraging States not to surrender accused persons of a particular nationality must defeat the object and purpose of the treaty. When President Bush came to power, though, in 2001, the signature was withdrawn. Thereafter, the United States had no treaty obligation not to hinder the object and purpose of the Rome Statute. On the other hand, signatories or States parties to the Statute of the International Criminal Court are obliged under Articles 18 and 26 of the Vienna Convention on the Law of Treaties either not to defeat its object and purpose or to perform it in good faith, respectively. Whether there is an argument that by threatening sanctions against States that will not conclude such agreements, the United States is inducing a breach of the Rome Statute and whether that would be unlawful in international law is undecided.350

348

349

350

Given that the ICC represents an improvement over the ICTY and ICTR in terms of fair trial and due process, it is nevertheless deﬁcient with respect to the full panoply of human rights guarantees – see Articles 66 and 67. See ZAPPALA, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS (2003); Fairlie, The Marriage of Common and Continental Law at the ICTY and its Progeny. Due Process Deﬁcit, 4 ICLR 243 (2004). See http://www.amicc.org/usinfo/administration_policy_BIAs.html. See also, the American Servicemembers’ Protection Act 2002 and the Nethercutt Amendment 2004. Zappalà, The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements, 1 JICJ 114 (2003); Scheffer, Article 98.2 of the Rome Statute: America’s Original Intent, 3 JICJ 333 (2005). For the text of such agreements, see http://www.amicc.org/docs/98template.pdf. See the Joint Opinion of Crawford, Sands and Wilde in the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute on behalf of the Lawyers’ Committee on Human Rights and the Medical Foundation for the Care of Victims of Torture.

Responding to War Crimes, Crimes Against Humanity and Genocide

415

6. Conclusion Some armed conﬂict crimes will never be prosecuted because the accused vanishes or there is insufﬁcient evidence. Nevertheless, States must pursue those accused of grave breaches under the Geneva Conventions and Additional Protocol I. Furthermore, the victims of crimes are entitled to an effective remedy under international human rights law, part of which obliges the State to investigate and prosecute.351 International human rights standards continue to apply throughout conﬂict subject only to derogations where applicable – post-conﬂict, this remains a continuing obligation in the light of the circumstances then pertaining.352 Part of resolving the conﬂict is to provide victims with remedies, a fact recognized in some of the bodies that have been more recently established, notably the International Criminal Court.353 Another element is to provide an agreed history, so that everyone can acknowledge the history of the conﬂict and the violations that have usually been perpetrated by both sides. That can best be achieved through a Truth and Reconciliation Commission – it is not a role for a court.354 However, TRCs, while an essential part of the post-conﬂict process, are not part of post-conﬂict justice – it would be inadequate not to provide a system whereby perpetrators of serious violations of international criminal law can be prosecuted. The question is what form should the post-conﬂict tribunal take? It is clear that the likes of the ICTY and ICTR will never be seen again. Similar ad hoc tribunals were suggested for Cambodia and East Timor and in neither case was the Security Council prepared to act. They were right for their time, but several of their failings can be avoided through either hybrid courts or third generation courts. The SCSL has many advantages. It is much less remote than the ad hoc tribunals, but it incorporates a majority of international judges and a format that can only be altered with the agreement of the United Nations. If it had secure funding through assessed contributions or if justice was recognised as an essential component of peacekeeping and so within the DPKO budget, then many of the problems of the SCSL would no longer arise. Third generation courts, on the other hand, can

351

352

353

354

See Aytekin v Turkey, 22880/93, European Commission of Human Rights, 18 September 1997, at paragraph 106; Kaya v Turkey, 22729/93, European Court of Human Rights, 19 February 1998, paragraph 92; Mahmut Kaya v Turkey, 22535/93, European Court of Human Rights (First Section), 28 March 2000, paragraphs 102–09. Although the United Nations has not ratiﬁed international human rights treaties, where it establishes a transitional administration, as in Kosovo or East Timor, the various treaties are imposed at an internal level. Failure by the administration to implement them presents questions beyond the scope of this paper. On victims, see generally Doak, The victim and the criminal process: an analysis of recent trends in regional and international tribunals, 23 LEGAL STUDIES 1 (2003); Garkawe, Victims and the ICC: three major issues, 3 ICLR 345 (2003). Although how the two institutions are to interact needs careful thought as the Sierra Leone experience has shown.

416

Chapter 7

more directly contribute to the restoration of the legal system of the State rather than draw resources into one speciﬁc court structure – third generation courts could be best placed to restore justice as a whole, but they do rely on an independent judiciary and a political will to let the investigation and prosecution proceed. Moreover, for the serious crimes that shock the conscience of the international community, especially where there are doubts about the fairness of any domestic trial, there is the International Criminal Court which, under Article 13(b), can hear cases referred by the Security Council if it has the political will. In sum, post-conﬂict justice is still at a formative stage. What is clear is that there is less chance now of impunity ruling the day. The international community now accepts that there must be a response to international crime, whether that be through extradition to a domestic court or before some international or internationalized court or tribunal.

Chapter 8 Refuge and Return1 1. Introduction No study of the law of extradition can avoid considering the allied topic of refugee status. If not extradited, the fugitive may receive asylum-protection from the requested State.2 Furthermore, the development of the political offence exemption can be seen as a logical progression from the well established idea of offering political asylum.3 Indeed, some present day judges have advocated a return to refugee and asylum principles in assessing the political character of an offence.

1

2

3

See generally, Kapferer, ‘The Interface between Extradition and Asylum’, PPLA/2003/05, November 2003, esp. pp. 74 et seq. That research paper was commissioned by the Protection Policy and Legal Advice Section of UNHCR’s Department of International Protection. The views expressed in that paper, however, are not necessarily those of UNHCR. The paper is available online at http://www.unhcr.ch/protect. While the ideas and focus of this Chapter tie it closely to Chapter Four above, some aspects can only be truly understood in the light of the discussion relating to the political offence exemption and responses to those committing genocide, war crimes and crimes against humanity, hence its position as the ﬁnal chapter in the book. This Chapter will not look at the complex question of crimes committed by migrants – see the very detailed research by Toma·evski, Host Country Crime Problems, in SCHMID (ed.), MIGRATION AND CRIME (ISPAC, 1996), at pp. 67 et seq. The United States granted asylum to a Russian journalist who had blown the cover on a Russian secret service dirty tricks campaign – The Guardian p. 15, 2 FEB 2005.

418

Chapter 8 The analogy of ‘political’ in [the context of the political offence exemption] is with ‘political’ in such phrases as ‘political refugee’, ‘political asylum’ or ‘political prisoner’.4

By way of corollary, the European Arrest Warrant5 and the EU Qualiﬁcations Directive6 complement each other in rejecting the idea of asylum and political offences within the European Union. The EAW applies to rendition with the European Union and does not provide for a political offence exemption. It implements a system based on judicial recognition of an arrest warrant issued in another European Union member State. As it provides in the Preamble to the Framework Decision, (10) The mechanism of the European arrest warrant is based on a high level of conﬁdence between Member States. . . . (12) . . . Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

It should be noted that every member State of the European Union has ratiﬁed the European Convention for the Protection of Human Rights and Fundamental Freedoms,7 and yet it was still felt necessary to include paragraphs 12 and 13. The most obviously questionable aspect of the Qualiﬁcations Directive appears in the title and is expanded upon in Article 2(c): the deﬁnition of a refugee applies only to third country nationals.8 To exclude from the outset nationals of any other

4 5

6

7 8

Schtraks v Government of Israel, [1964] AC 556, per Viscount Radcliffe at 591. OJ L 190 18 JUL 2002, p. 1, Acts adopted pursuant to Title VI of the Treaty on European Union, Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (2002/584/JHA). Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualiﬁcation and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 SEP 2004. ETS 5 (1950). Article 2 provides that for the purpose of the Directive: (c) ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply.

Refuge and Return

419

state from the remit of the Convention Relating to the Status of Refugees 19519 violates Article 3, which reads: The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin. (emphasis added)

Nevertheless, the Qualiﬁcations Directive has been passed and while negative in content, it exempliﬁes alongside the EAW the linkages between the political offence exemption and refugee status and asylum.

2. The interaction of refugee status, asylum and extradition law Before analysing their interaction, it is necessary to set out the international norms relating to refugee status and asylum. Article 14 of the Universal Declaration of Human Rights, 1948 provides for a right to seek asylum, but not even in a mere General Assembly Declaration would States concede there was a right to asylum per se. The only international documents to make reference to a possible right of asylum, rather than a right to seek asylum, are the 1967 Declaration on Territorial Asylum and the unadopted 1977 Draft Convention on Territorial Asylum.10 In Ker v Illinois,11 a case concerning abduction of a fugitive from Peru to stand trial in Illinois, the following position was asserted by the United States Supreme Court. It is idle, therefore, to claim that either by express terms or by implication, there is given to a fugitive from justice in one of these countries any right to remain and reside in the other; and if the right to asylum means anything, it must mean this. The right of the Government of Peru voluntarily to give a party in Ker’s condition an asylum in the country, is quite a different thing from the right in him to demand and insist upon security in such an asylum.

This view was restated in Chandler v United States,12 again in the context of ‘disguised extradition’.

9 10

11 12

189 UNTS 150. And see the 1967 Protocol, 606 UNTS 267. Declaration on Territorial Asylum, 1967, U.N.G.A.Res.2312 (XXII), and the Draft Convention on Territorial Asylum 1977, U.N.Doc.A/CONF.78/12. Neither creates binding obligations. 1967 Declaration – Article 1 1. Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States. (emphasis added) 119 US 436 at 432 (1886). 171 F.2d 921 at 935 (1948).

420

Chapter 8 . . . it has long been the practice of States to give asylum. But the right is that of the State voluntarily to offer asylum, not that of the fugitive to insist upon it.

Courts in Australia13 have also made it plain that the right to enter a country is within the prerogative of the executive, as is any grant of asylum. In Knauf v Shaughnessy,14 another United States case, the court made it clear that under the traditional view there is no ‘right’ to enter the State. At the outset we wish to point out that an alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government.

At a regional level there have been developments in Africa and the Americas. Having regard to the fact that so many of the world’s de facto refugee population is in Africa, it is unsurprising that the member States of the then Organisation of African Unity (now, the African Union) drew up their own regional refugee convention.15 Broader than the 1951 and 1967 arrangements, in Article II it speaks of the granting of asylum, although in terms recognising it as a permissive power of the State. Article 12(3) of the African Charter of Human And Peoples’ Rights16 also guarantees the right to seek asylum in line with domestic laws and international conventions. The American Convention on Human Rights17 also includes the right to seek asylum. More interestingly, though, the OAS concluded two conventions in 1954 on Territorial and Diplomatic Asylum.18 The Conventions set out obligations as regards asylum as they apply between States, not as they might affect an individual. However, Article 4 of the Territorial Convention does provide that extradition shall not be allowed if the granting State determines that the offence or the motive for the request to be political. On the other hand, the 1951 Convention provides for non-refoulement for refugees.19 A refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country – Article 1A(2). Refugees shall not be subject to refoulement:

13 14 15 16 17 18

19

Schlieske v Minister for Immigration and Ethnic Affairs, 84 ALR 719 at 729 (1988). 338 US 537 at 542 (1949). Convention on Refugee Problems in Africa, 1969, 1001 UNTS 45. See Article 12.3. 21 INT.LEG.MAT.58 (1982). Art. 22(7), 9 INT.LEG.MAT.673 (1970). 1954 Caracas Convention on Territorial Asylum, in force 29 DEC 1954; OASTS 34. 1954 Caracas Convention on Diplomatic Asylum, in force 29 DEC 1954, OASTS 34. See GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 1996.

Refuge and Return

421

Article 33. – Prohibition of expulsion or return (refoulement) 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The limits of the 1951 Convention need to be recognized. First, a refugee may be returned or sent to any country where his life or freedom would not be threatened20 and that refugee status is temporary – once there is no fear of persecution, refugee status may cease.21 While non-refoulement under Article 33 is limited to Convention refugees, there is incontrovertible evidence that non-refoulement is customary international law and that it is broader than the Convention deﬁnition.22 This broader understanding of non-refoulement comes from developments in international human rights law.23 It was explained in Soering v United Kingdom,24 a case based on an extradition request from the United States, as follows:

20

21

22

23

24

Although it needs to be found that that State will not send the person on to a third State where their life or freedom would be threatened – Regina v Secretary of State for the Home Department, ex parte Adan, Regina v Secretary of State for the Home Department, ex parte Aitseguer, [2001] 1 All ER 593. Article 1C – This Convention shall cease to apply to any person falling under the terms of section A if: (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Cf. Article 34. The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings. See Lauterpacht and Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in FELLER, TÜRK AND NICHOLSON (eds.), REFUGEE PROTECTION IN INTERNATIONAL LAW (2003), at 87. Which is not to say that States always uphold this international obligation – see the case of Kyrgyzstan returning Uzbeks back to their country of nationality after the Andijan protests (Bofaxe 294E ‘Returning Uzbek Asylum Seekers: the Principle of NonRefoulement’, 19 July 2005. BOFAXE are published by the Institute for International Law of Peace and Humanitarian Law of the Ruhr-University Bochum). See Chapter Four, above. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 23 INT.LEG.MAT.1027 (1984) & 24 INT.LEG.MAT.535 (1985) – Article 3. 3.1 No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. See Bilasi-Ashri v Austria App.No. 3314/02, 26 November 2002, where the European Court of Human Rights (Second Section) did not have to make a decision where the Austrian government ended extradition proceedings when Egypt refused to give diplomatic assurances about the future treatment of the fugitive if surrendered. Additionally, a Turk was not extradited back to Turkey because he faced torture – The Guardian p. 11, 26 JUL 2002. Series A, vol. 161 (1989).

422

Chapter 8 91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 [ECHR], and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 . . . of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.

Unlike human rights law, though, the Convention Relating to the Status of Refugees 1951 also permits exclusion.25 Exclusion provides yet another area of overlap with extradition law. Article 1F of the 1951 Convention provides as follows: 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as deﬁned in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.26

Thus, an applicant will be denied refugee status if s/he has committed a war crime, crimes against humanity, or a serious non-political crime before entering the coun-

25

26

Although the word ‘exclusion’ appears nowhere in the relevant provision, Article 1F. See Gilbert, ‘Current Issues in the Application of the Exclusion Clauses’ in FELLER, TÜRK AND NICHOLSON, REFUGEE PROTECTION IN INTERNATIONAL LAW (2003), at pp. 425–78. See also, UNHCR Guidelines on International Protection: Application of the Exclusion Clauses, HCR/ GIP/03/05, 4 September 2003, and the Background Note issued at the same time. See also, Article 33.2 of the 1951 Convention. 33.2 The beneﬁt of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a ﬁnal judgement of a particularly serious crime, constitutes a danger to the community of that country. Article 33.2 applies to persons who have refugee status, but who are subsequently deemed a danger to the country in which they have refuge or who commit a particularly serious crime and constitute a danger to that country. In either of those cases, they can be sent back to the frontiers of a territory where their life or freedom would be threatened; they lose the non-refoulement protection found in Article 33.1.

Refuge and Return

423

try of refuge.27 Nevertheless, in Antonin L v F.R.G.,28 it was held that an asylum application could be accepted from a person who had just been released after serving a sentence for hijacking, a serious international crime. The court decided that the applicant had hijacked the plane to ﬂee Czechoslovakia to escape persecution for his political opinions and that the hijacking had not prejudiced the relations between the F.R.G. and Czechoslovakia.29 Regard should also be had, however, to cases such as Gil,30 where it was held that those perpetrating violent and indiscriminate attacks which injured innocent civilians did not qualify for refugee status. T v Secretary of State for the Home Department,31 the leading authority on the political offence exemption in English extradition law, is a case dealing with exclusion under Article 1F(b) for serious crimes of violence. Moreover, some States have claimed that certain crimes are contrary to the purposes and principles of the United Nations such that the person should be excluded under Article 1F(c).32 In Georg K v Ministry of the Interior,33 the Austrian Administrative Court held that an Italian national previously convicted in Austria of carrying out a bombing campaign in the South Tyrol to try and reunite that province with Austria, could not be granted asylum since his actions violated Article 1F(c) of the 1951 Convention; an individual whose actions affect the relations of nations, in this case Austria and Italy, could be in breach of the United Nations Charter. The

27

28 29

30 31 32

33

Despite the fact that there was not a single refugee involved in the attacks of 11 September 2001, the Security Council Resolutions that followed all called on member States to ensure refugee status was not used to protect international terrorists. See UNSC Res.1373 (2001), 28 September 2001. 3. Calls upon all States to: (g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists; 80 INT’L L REP.673 (Sup.Admin.Ct of Bavaria, 1979). At 678 et seq. See also the case of the Swedish government indicating its willingness to grant asylum, after he serves his sentence, to a former Soviet national after who hijacked a plane to Sweden – The Guardian p. 8, 12 SEPT 1990; p. 9, 7 AUG 1992. See also the case of the former Stasi ofﬁcer who had collaborated with international terrorists and then sought asylum in Greece – The Guardian p. 8, 23 AUG 1992. In R v Abdul Hussain, unreported, 17 December 1998, the English Court of Appeal acquitted hijackers who ﬂed Iraq on the basis that they had acted under duress. Ethiopians who hijacked a plane to Sweden released everyone unharmed on condition that they were not returned to Ethiopia – The Guardian p. 19, 27 APR 2001. Cf. Posada, a Cuban exile and Venezuelan national, was alleged to have taken part in a conspiracy in Venezuela to blow up a Cuban airliner – his request for refugee status in the United States faltered, but he was protected on the basis he feared torture – see The Guardian p. 16, 10 MAY 2005; pp. 16 and 25, 18 MAY 2005; p. 15, 20 MAY 2005; p. 17, 2 JUN 2005; p. 3, 13 JUN 2005; pp. 12 and 22, 14 JUN 2005; and p. 16, 29 SEP 2005. Gil v Minister for Employment and Immigration (1994) 119 DLR (4th) 497. [1996] 2 All ER 865. See Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982, dealing with drug smuggling. 71 INT’L L REP.284.

424

Chapter 8

consequence is that the same acts that might lead to an extradition request will also deny the transnational fugitive offender refugee status. However, while there is an overlap between extradition law and refugee status, there are also divergences, some of which reﬂect the different paths refugee law, international human rights law and extradition law have taken since 1951. As is apparent, a transnational fugitive offender “with respect to whom there are serious reasons for considering that” s/he has committed a war crime, a crime against peace, crimes against humanity, a serious non-political crime or is guilty of acts contrary to the purposes and principles of the United Nations will be excluded from refugee status. As such, if the State where s/he seeks refuge denies them that status, there would be no violation of the 1951 Convention if they were returned to the frontiers of a territory of a State where their life or freedom would be threatened – Article 33 only applies to Article 1 refugees. However, under customary international law and international human rights law there would be a breach because neither is so constrained.34 Furthermore, if an extradition request is made vis à vis a crime set out in one of the United Nations multilateral anti-terrorist treaties,35 then extradition law will provide greater protection for the transnational fugitive offender than refugee law would if s/he simultaneously applied for refugee status. The United Nations anti-terrorist treaties require States parties to enact domestic legislation so that they can deal with alleged offenders. Indeed, where the requesting and requested States do not have existing extradition relations, the multilateral treaty can act as a surrogate. Nevertheless, the requested State is permitted to ignore any request where the fugitive would suffer discrimination if returned, as the International Convention for the Suppression of Terrorist Bombings 1998, for example, makes clear. Article 12 Nothing in this Convention shall be interpreted as imposing an obligation to extradite . . ., if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 . . . has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request

34

35

In Chahal v United Kingdom, (70/1995/576/662), 15 November 1996, the European Court of Human Rights refused to allow the deportation to India of an alleged terrorist who feared torture contrary to Article 3 ECHR. E.g. Hague Convention of 1970 on Hijacking, 10 INT.LEG.MAT.133 (1971); the Montreal Convention of 1971 on Unlawful Acts Against the Safety of Aircraft, 10 INT.LEG.MAT.1151 (1971); the New York Convention on Offences Against Internationally Protected Persons, 13 INT.LEG.MAT.42 (1974); the 1980 Hostages Convention, 18 INT.LEG.MAT.1456 (1979); the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation I.M.O.Doc SUA/CON/15, 10 March 1988, 27 INT.LEG.MAT.668 (1988); the International Convention for the Suppression of Terrorist Bombings 1998, 37 INT.LEG.MAT 249 (1998); and the International Convention for the Suppression of the Financing of Terrorism, Annex to UNGA Res.54/109, 25 February 2000.

Refuge and Return

425

would cause prejudice to that person’s position for any of these reasons. (emphasis added)

As can be seen, it is not obligatory to extradite and the grounds for refusal are remarkably similar to those set out in Articles 1A(2) and 33.1 of the Convention Relating to the Status of Refugees 1951; only member of a particular social group is missing. Thus, the position is that a person could arrive in a State, request refugee status, be excluded under Article 1F because there are serious reasons for considering that s/he has committed a crime set out in one of the United Nations multilateral anti-terrorist conventions, and, therefore, be subject to return to a country where his life or freedom would be threatened, subject only to human rights treaty obligations36 adhered to by that State or customary non-refoulement. On the other hand, if s/he arrived in that State, an extradition request was then received from another State in relation to a United Nations multilateral anti-terrorist treaty crime, extradition could be refused because it was feared s/he would be prosecuted, punished or prejudiced on account of grounds derived from refugee status. International criminal law provides greater protection than international refugee law.

3. Extradition and Refugees The question of refugee status can arise in two ways with respect to extradition law: can one extradite a refugee and what is the consequence of someone applying for refugee status who has been requested for extradition? The two questions clearly overlap to some extent. As regards the ﬁrst question, the starting point is that refugee status only prohibits the refoulement of a refugee to the frontiers of a territory where her/his life or freedom would be threatened. Thus, if the requesting State would not threaten the life or freedom of the transnational fugitive offender/ refugee, then extradition should present no problems.37 According to s39(3) of the British Extradition Act 2003,38 a person requested by a Category 1 territory, that is, a member State of the

36

37

38

E.g. Afghani hijackers who sought refugee status in the United Kingdom failed in their claim, but could not be sent back to Afghanistan because of the United Kingdom’s obligations under the ECHR – BBC News website 3889107.stm, 2004/07/13 08:37:39. In Regina (Al-Fawwaz, Abdel Bary, Eidarous) v Governor of Brixton Prison and another [2001] UKHL 69, [2002] 1 AC 556, Abdel Bary and Eidarous had both been granted asylum according to paragraph 5 of the judgment, but the request by the United States gave rise to no concerns vis à vis their status. Cf. R (on the application of Karpichkov and another) v Latvia and the Republic of South Africa, unreported, QBD 26 April 2001. Refugee status was granted to a Russian while extradition hearing was pending – The Guardian p. 19, 3 APR 2003; p. 14, 19 JUL 2003; p. 11, 13 SEP 2003; p. 12, 8 OCT 2003. Russia has criticized the United Kingdom for granting asylum to a Chechen political leader – The Guardian p. 20, 10 SEP 2004.

426

Chapter 8

European Union, shall not be extradited pending the ﬁnal determination of her/his claim for refugee status.39 However, that is limited by s40(3).40 40(1) – Section 39(3) does not apply in relation to a person if the Secretary of State has certiﬁed that the conditions . . . in subsection (3) are satisﬁed in relation to him. (3) The conditions are that, in the opinion of the Secretary of State(a) the person is not a national or citizen of the category 1 territory to which his extradition has been ordered; (b) the person’s life and liberty would not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group; (c) the government of the territory would not send the person to another country otherwise than in accordance with the Refugee Convention.

There is a further underlying difﬁculty, too, in that during the drafting of the 1951 Convention, several States expressed the view that extradition should not be prejudiced by Article 33.41 Not only, according to this view, should it be possible to extradite someone responsible for a serious non-political crime because they are excluded under Article 1F(b), but also someone suspected of a less serious charge. The two sets of treaty obligations, those under the 1951 Convention owed to the individual and those under the extradition treaty owed to the requesting State, both need to be adhered to, but those guaranteeing the physical integrity and liberty of the individual should always prevail where there is a conﬂict: a refugee can be extradited, just not to the “frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.42 The practice of courts on this matter lacks consistency. The Dutch Council of State in Folkerts v State Secretary of Justice43 was faced with the question of whether an application for refugee status should hinder extradition under the 1957 European Convention on Extradition. It was decided that since extradition could only be granted if the requirements of Article 3(2) of the 1957 Convention were met, which provides that a fugitive shall not be surrendered if he would face persecution or prejudice in the requesting State on account of his race, religion, nationality or political opinion, then an application for refugee status was redundant; if article 3(2) was satisﬁed, then either the applicant would not qualify as a

39 40

41

42

43

See also, s121 Extradition Act 2003 with respect to category 2 States. Section 40(2) deals with the case where the requesting State will take on responsibility for determining refugee status, too. See GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, at pp. 147–50. See also EXCOM Conclusion No. 17 (XXXI) 1980. Some States have been known to treat those having refugee status as nationals and then refuse extradition on that basis. 74 INT’L L REP.472 (1978).

Refuge and Return

427

refugee under Article 1F or he would fall within the exception set out in Article 33.2 of the 1951 Convention. Additionally, though, the court received an opinion from the representative of the United Nations High Commissioner for Refugees that owing to the serious terrorist charges alleged against the accused he would not be deemed a refugee under Article 1F of the 1951 Convention.44 French courts have also had to deal with the issue. In Galdeano, Ramirez and Beiztegui,45 the applicants were Basque separatists being extradited to Spain who sought refugee status to prevent surrender. The Cour de Cassation held that Article 33 did not prevent extradition, but the Conseil d’Etat avoided the issue by declaring them to be outside the scope of Article 1 of the 1951 Convention by virtue of their serious, non-political crimes. The decision of the Cour de Cassation harked back to the views expressed by some of the delegations in 1951.46 Fortunately, the Conseil d’Etat became apprised of the matter once more in Bereciartua-Echarri.47 The fugitive, a Spanish Basque, had been granted refugee status by France in 1973. His surrender was requested by Spain and the Cour de Cassation found that since extradition was not expressly mentioned in Article 33, then it could not be prohibited under the 1951 Convention. On appeal to the Conseil d’Etat, it was held that subject to matters of national security, extradition should be refused, not under Article 33 and the principle of non-refoulement, but on the basis of general principles of refugee law deriving from Article 1A(2) of the 1951 Convention. On such grounds, a State that recognised a fugitive offender’s refugee status would be forbidden from returning him by any means, method or mechanism whatsoever to a State where he might face persecution.48 Bereciartua-Echarri lays down that extradition is subject to the humanitarian measures set out in the 1951 Convention, a decision consistent with the ethos of Article 33 and the principle of non-refoulement and which should put an end to the legalism that has surrounded a provision designed to protect the life and physical integrity of the applicant. No person should ever be extradited to a place where he might face persecution.

4. Conclusion Refugee status and its concomitant rights can prove ephemeral in practice. There is deﬁnitely an element of foreign policy at work on occasions.49 Nevertheless, the

44 45 46 47 48

49

74 INT’L L REP.472 (1978), at 475–76. 26 SEP 1984, Rec.307, noted in [1985] PUB.LAW 328. See GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, at n132. 1 April 1988, to be published in Recueil Lebon. A different approach with respect to Italy seems to have been devised, where a former Red Brigade terrorist offered sanctuary in France in the 1980s, was still threatened with extradition in 2004. The Guardian p. 16, 26 AUG 2004; (G2) pp. 2 and 3, 26 AUG 2004; p. 10, 14 OCT 2004. See Meissner and Dietrich, at pp. 57–73 of MARTIN, THE NEW ASYLUM SEEKERS (1988).

428

Chapter 8

applicant has limited rights which may provide substantial guarantees. That those rights should prohibit extradition where there is a danger of persecution in the requesting State is the only consistent approach that can be effective, and there should be no geographical limitations on where that persecution might occur.

Appendix COUNCIL FRAMEWORK DECISION of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)

CHAPTER 1 General principles Article 1 Deﬁnition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 2 Scope of the European arrest warrant 1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a

430

Appendix

maximum period of at least twelve months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. 2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 3 years and as they are deﬁned by the law of the issuing Member State, shall, under the terms of this Framework Decision and without veriﬁcation of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: – – – – – – – –

– – – – – – – – – – – – – – – – – – – – – –

participation in a criminal organisation, terrorism, trafﬁcking in human beings, sexual exploitation of children and child pornography, illicit trafﬁcking in narcotic drugs and psychotropic substances, illicit trafﬁcking in weapons, munitions and explosives, corruption, fraud, including that affecting the ﬁnancial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ ﬁnancial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer-related crime, environmental crime, including illicit trafﬁcking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage-taking, racism and xenophobia, organised or armed robbery, illicit trafﬁcking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafﬁcking therein, forgery of means of payment, illicit trafﬁcking in hormonal substances and other growth promoters, illicit trafﬁcking in nuclear or radioactive materials, trafﬁcking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court,

Appendix

431

– unlawful seizure of aircraft/ships, – sabotage. 3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended. 4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described. Article 3 Grounds for mandatory non-execution of the European arrest warrant The executing judicial authority of the Member State of execution (hereinafter “executing judicial authority”) shall refuse to execute the European arrest warrant in the following cases: 1) if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; 2) if the executing judicial authority is informed that the requested person has been ﬁnally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; 3) if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. Article 4 Grounds for optional non-execution of the European arrest warrant The executing judicial authority may refuse to execute the European arrest warrant: 1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes,

432

2.

3.

4.

5.

6.

7.

Appendix

duties and customs and exchange regulations as the law of the issuing Member State; where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based; where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a ﬁnal judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings; where the criminal prosecution or punishment of the requested person is statutebarred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law; if the executing judicial authority is informed that the requested person has been ﬁnally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country; if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law; where the European arrest warrant relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.

Article 5 Guarantees to be given by the issuing Member State in particular cases The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial

Appendix

433

authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; 2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed – on request or at the latest after 20 years – or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure; 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. Article 6 Determination of the competent judicial authorities 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. Article 7 Recourse to the central authority 1. Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2. A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other ofﬁcial correspondence relating thereto. A Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating

434

Appendix

to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State. Article 8 Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; (d) the nature and legal classiﬁcation of the offence, particularly in respect of Article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a ﬁnal judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. 2. The European arrest warrant must be translated into the ofﬁcial language or one of the ofﬁcial languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other ofﬁcial languages of the Institutions of the European Communities.

CHAPTER 2 Surrender procedure Article 9 Transmission of a European arrest warrant 1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS).

Appendix

435

3. Such an alert shall be effected in accordance with the provisions of Article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in Article 8(1). For a transitional period, until the SIS is capable of transmitting all the information described in Article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority. Article 10 Detailed procedures for transmitting a European arrest warrant 1. If the issuing judicial authority does not know the competent executing judicial authority, it shall make the requisite enquiries, including through the contact points of the European Judicial Network, in order to obtain that information from the executing Member State. 2. If the issuing judicial authority so wishes, transmission may be effected via the secure telecommunications system of the European Judicial Network. 3. If it is not possible to call on the services of the SIS, the issuing judicial authority may call on Interpol to transmit a European arrest warrant. 4. The issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity. 5. All difﬁculties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States. 6. If the authority which receives a European arrest warrant is not competent to act upon it, it shall automatically forward the European arrest warrant to the competent authority in its Member State and shall inform the issuing judicial authority accordingly. Article 11 Rights of a requested person 1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority. 2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and

436

Appendix

by an interpreter in accordance with the national law of the executing Member State. Article 12 Keeping the person in detention When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding. Article 13 Consent to surrender 1. If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the “speciality rule”, referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State. 2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel. 3. The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State. 4. In principle, consent may not be revoked. Each Member State may provide that consent and, if appropriate, renunciation may be revoked, in accordance with the rules applicable under its domestic law. In this case, the period between the date of consent and that of its revocation shall not be taken into consideration in establishing the time limits laid down in Article 17. A Member State which wishes to have recourse to this possibility shall inform the General Secretariat of the Council accordingly when this Framework Decision is adopted and shall specify the procedures whereby revocation of consent shall be possible and any amendment to them.

Appendix

437

Article 14 Hearing of the requested person Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State. Article 15 Surrender decision 1. The executing judicial authority shall decide, within the time-limits and under the conditions deﬁned in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority ﬁnds the information communicated by the issuing Member State to be insufﬁcient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may ﬁx a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority. Article 16 Decision in the event of multiple requests 1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order. 2. The executing judicial authority may seek the advice of Eurojust when making the choice referred to in paragraph 1. 3. In the event of a conﬂict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention. 4. This Article shall be without prejudice to Member States’ obligations under the Statute of the International Criminal Court.

438

Appendix

Article 17 Time limits and procedures for the decision to execute the European arrest warrant 1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the ﬁnal decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the ﬁnal decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. 4. Where in speciﬁc cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. 5. As long as the executing judicial authority has not taken a ﬁnal decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulﬁlled. 6. Reasons must be given for any refusal to execute a European arrest warrant. 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level. Article 18 Situation pending the decision 1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must: (a) either agree that the requested person should be heard according to Article 19; (b) or agree to the temporary transfer of the requested person. 2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities. 3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure.

Appendix

439

Article 19 Hearing the person pending the decision 1. The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. 2. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities. 3. The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down. Article 20 Privileges and immunities 1. Where the requested person enjoys a privilege or immunity regarding jurisdiction or execution in the executing Member State, the time limits referred to in Article 17 shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. The executing Member State shall ensure that the material conditions necessary for effective surrender are fulﬁlled when the person no longer enjoys such privilege or immunity. 2. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing judicial authority to request it to exercise that power. Article 21 Competing international obligations This Framework Decision shall not prejudice the obligations of the executing Member State where the requested person has been extradited to that Member State from a third State and where that person is protected by provisions of the arrangement under which he or she was extradited concerning speciality. The executing Member State shall take all necessary measures for requesting forthwith the consent of the State from which the requested person was extradited so that he or she can be surrendered to the Member State which issued the European arrest warrant. The time limits referred to in Article 17 shall not start running until the day on which these speciality rules cease to apply. Pending the decision of the State from

440

Appendix

which the requested person was extradited, the executing Member State will ensure that the material conditions necessary for effective surrender remain fulﬁlled. Article 22 Notiﬁcation of the decision The executing judicial authority shall notify the issuing judicial authority immediately of the decision on the action to be taken on the European arrest warrant. Article 23 Time limits for surrender of the person 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than ten days after the ﬁnal decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released. Article 24 Postponed or conditional surrender 1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant. 2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State.

Appendix

441

Article 25 Transit 1. Each Member State shall, except when it avails itself of the possibility of refusal when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence or detention order, permit the transit through its territory of a requested person who is being surrendered provided that it has been given information on: (a) the identity and nationality of the person subject to the European arrest warrant; (b) the existence of a European arrest warrant; (c) the nature and legal classiﬁcation of the offence; (d) the description of the circumstances of the offence, including the date and place. Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the Member State of transit, transit may be subject to the condition that the person, after being heard, is returned to the transit Member State to serve the custodial sentence or detention order passed against him in the issuing Member State. 2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other ofﬁcial correspondence relating to transit requests. Member States shall communicate this designation to the General Secretariat of the Council. 3. The transit request and the information set out in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure. 4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing Member State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1. 5. Where a transit concerns a person who is to be extradited from a third State to a Member State this Article will apply mutatis mutandis. In particular the expression “European arrest warrant” shall be deemed to be replaced by “extradition request”.

CHAPTER 3 Effects of the surrender *

*

*

442

Appendix

Article 27 Possible prosecution for other offences 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notiﬁcation, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her ﬁnal discharge, or has returned to that territory after leaving it; (b) the offence is not punishable by a custodial sentence or detention order; (c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a ﬁnancial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty; (e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13; (f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to speciﬁc offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation.

Appendix

443

Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein. Article 28 Surrender or subsequent extradition 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notiﬁcation, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases: (a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his ﬁnal discharge, or has returned to that territory after leaving it; (b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel; (c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g). 3. The executing judicial authority consents to the surrender to another Member State according to the following rules:

444

Appendix

(a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2); (b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision; (c) the decision shall be taken no later than 30 days after receipt of the request; (d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein. 4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law. *

*

*

Article 31 Relation to other legal instruments 1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the ﬁeld of extradition in relations between the Member States: (a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned; (b) the Agreement between the twelve Member States of the European Communities on the simpliﬁcation and modernisation of methods of transmitting extradition requests of 26 May 1989; (c) the Convention of 10 March 1995 on simpliﬁed extradition procedure between the Member States of the European Union; (d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union; (e) Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders.

Appendix

445

2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted insofar as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. Member States may conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force insofar as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants, in particular by ﬁxing time limits shorter than those ﬁxed in Article 17, by extending the list of offences laid down in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4, or by lowering the threshold provided for in Article 2(1) or (2). The agreements and arrangements referred to in the second subparagraph may in no case affect relations with Member States which are not parties to them. Member States shall, within three months from the entry into force of this Framework Decision, notify the Council and the Commission of the existing agreements and arrangements referred to in the ﬁrst subparagraph which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in the second subparagraph, within three months of signing it. 3. Where the conventions or agreements referred to in paragraph 1 apply to the territories of Member States or to territories for whose external relations a Member State is responsible to which this Framework Decision does not apply, these instruments shall continue to govern the relations existing between those territories and the other Members States. *

*

*

Article 35 Entry into force This Framework Decision shall enter into force on the twentieth day following that of its publication in the Ofﬁcial Journal of the European Communities.

446

Appendix Rome Statute of the International Criminal Court PREAMBLE

The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Afﬁrming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reafﬁrming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conﬂict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows:

Appendix

447

PART 1. ESTABLISHMENT OF THE COURT Article 1 The Court An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. Article 2 Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. Article 3 Seat of the Court 1. The seat of the Court shall be established at The Hague in the Netherlands (“the host State”). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute. Article 4 Legal status and powers of the Court 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulﬁlment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

448

Appendix

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) (b) (c) (d)

The crime of genocide; Crimes against humanity; War crimes; The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 deﬁning the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. Article 6 Genocide For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inﬂicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 7 Crimes against humanity 1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) (b) (c) (d)

Murder; Extermination; Enslavement; Deportation or forcible transfer of population;

Appendix

449

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identiﬁable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as deﬁned in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional inﬂiction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafﬁcking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional inﬂiction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) “Forced pregnancy” means the unlawful conﬁnement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This deﬁnition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

450

Appendix

(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) (ii) (iii) (iv)

Wilful killing; Torture or inhuman treatment, including biological experiments; Wilfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justiﬁed by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful conﬁnement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conﬂict, within the established framework of international law, namely, any of the following acts:

Appendix (i) (ii) (iii)

(iv)

(v)

(vi) (vii)

(viii)

(ix)

(x)

(xi) (xii) (xiii)

451

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conﬂict; Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; Making improper use of a ﬂag of truce, of the ﬂag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientiﬁc experiments of any kind which are neither justiﬁed by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

452

Appendix (xiv) (xv)

(xvi) (xvii) (xviii) (xix)

(xx)

(xxi) (xxii)

(xxiii)

(xxiv)

(xxv)

(xxvi)

Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; Pillaging a town or place, even when taken by assault; Employing poison or poisoned weapons; Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or ﬂatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superﬂuous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conﬂict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; Committing outrages upon personal dignity, in particular humiliating and degrading treatment; Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as deﬁned in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; Conscripting or enlisting children under the age of ﬁfteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conﬂict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August

Appendix

453

1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conﬂicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conﬂicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conﬂict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as deﬁned in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

454

Appendix (vii) Conscripting or enlisting children under the age of ﬁfteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conﬂict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conﬂict to physical mutilation or to medical or scientiﬁc experiments of any kind which are neither justiﬁed by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conﬂict;

(f) Paragraph 2 (e) applies to armed conﬂicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conﬂicts that take place in the territory of a State when there is protracted armed conﬂict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.

Appendix

455

3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3. Article 12 Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Article 13 Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

456

Appendix

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14 Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more speciﬁc persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. Article 15 Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

Appendix

457

5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. Article 17 Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufﬁcient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

458

Appendix

(b) There has been an unjustiﬁed delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. Article 18 Preliminary rulings regarding admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a conﬁdential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. 2. Within one month of receipt of that notiﬁcation, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notiﬁcation to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a signiﬁcant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.

Appendix

459

6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a signiﬁcant risk that such evidence may not be subsequently available. 7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional signiﬁcant facts or signiﬁcant change of circumstances. Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the conﬁrmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After conﬁrmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.

460

Appendix

7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6; (b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisﬁed that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be conﬁdential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place. Article 20 Ne bis in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

Appendix

461

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Article 21 Applicable law 1. The Court shall apply: (a) In the ﬁrst place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conﬂict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as deﬁned in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The deﬁnition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the deﬁnition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

462

Appendix

Article 23 Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute. Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a ﬁnal judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

Appendix

463

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. Article 26 Exclusion of jurisdiction over persons under eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. Article 27 Irrelevance of ofﬁcial capacity 1. This Statute shall apply equally to all persons without any distinction based on ofﬁcial capacity. In particular, ofﬁcial capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government ofﬁcial shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the ofﬁcial capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

464

Appendix (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i)

The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Article 29 Non-applicability of statute of limitations The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

Appendix

465

Article 31 Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

466

Appendix

Article 32 Mistake of fact or mistake of law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33. Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. * * * * * * Article 66 Presumption of innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. Article 67 Rights of the accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;

Appendix

467

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in conﬁdence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufﬁcient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide. * * * * * * Article 86 General obligation to cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

468

Appendix

Article 89 Surrender of persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility. 3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Appendix

469

Article 90 Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can ﬁrst obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can ﬁrst obtain the cooperation of the sending State for the giving of consent for the surrender. * * * * * * Article 120 Reservations No reservations may be made to this Statute. Article 121 Amendments 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notiﬁcation, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratiﬁcation or acceptance have been

470

Appendix

deposited with the Secretary-General of the United Nations by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratiﬁcation or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory. 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference. Article 122 Amendments to provisions of an institutional nature 1. Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (ﬁrst two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a twothirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference. Article 123 Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.

Appendix

471

2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference. Article 124 Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1. Article 125 Signature, ratiﬁcation, acceptance, approval or accession 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratiﬁcation, acceptance or approval by signatory States. Instruments of ratiﬁcation, acceptance or approval shall be deposited with the Secretary-General of the United Nations. 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 126 Entry into force 1. This Statute shall enter into force on the ﬁrst day of the month after the 60th day following the date of the deposit of the 60th instrument of ratiﬁcation, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratiﬁcation, acceptance, approval or accession, the Statute shall enter into force on the ﬁrst day of the month after the 60th day following the deposit by such State of its instrument of ratiﬁcation, acceptance, approval or accession.

472

Appendix

THE LONDON SCHEME FOR EXTRADITION WITHIN THE COMMONWEALTH incorporating the amendments agreed at Kingstown in November 2002. 1. (1) The general provisions set out in this Scheme will govern the extradition of a person from the Commonwealth country, in which the person is found, to another Commonwealth country, in which the person is accused of an offence. (2) Extradition will be precluded by law, or be subject to refusal by the competent executive authority, only in the circumstances mentioned in this Scheme. (3) For the purpose of this Scheme a person liable to extradition as mentioned in paragraph (1) is described as a person sought and each of the following areas is described as a separate country: (a) each sovereign and independent country within the Commonwealth together with any dependent territories which that country designates, and (b) each country within the Commonwealth, which, though not sovereign and independent, is not a territory designated for the purposes of the preceding sub-paragraph. EXTRADITION OFFENCES AND DUAL CRIMINALITY RULE 2. (1) A person sought will only be extradited for an extradition offence. (2) For the purpose of this Scheme, an extradition offence is an offence however described which is punishable in the requesting and requested country by imprisonment for two years or a greater penalty. (3) In determining whether an offence is an offence punishable under the laws of both the requesting and the requested country, it shall not matter whether: (a) the laws of the requesting and requested countries place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology; (b) under the laws of the requesting and requested countries the elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting country constitute an offence under the laws of the requested country. (4) An offence described in paragraph (2) is an extradition offence notwithstanding that the offence: (a) is of a purely ﬁscal character; or (b) was committed outside the territory of the requesting country where extradition for such offences is permitted under the law of the requested country.

Appendix

473

WARRANTS, OTHER THAN PROVISIONAL WARRANTS 3. (1) A person sought will only be extradited if a warrant for arrest has been issued in the country seeking extradition and either – (a) that warrant is endorsed by a competent judicial authority in the requested country (in which case, the endorsed warrant will be sufﬁcient authority for arrest), or (b) a further warrant for arrest is issued by the competent judicial authority in the requested country, other than a provisional warrant issued in accordance with clause 4. (2) The endorsement or issue of a warrant may be made conditional on the competent executive authority having previously issued an order to proceed. PROVISIONAL WARRANTS 4. (1) Where a person sought is, or is suspected of being, in or on the way to any country but no warrant has been endorsed or issued in accordance with clause 3, the competent judicial authority in the destination country may issue a provisional warrant for arrest on such information and under such circumstances as would, in the authority’s opinion, justify the issue of a warrant if the extradition offence had been an offence committed within the destination country. (2) For the purposes of paragraph 1, information contained in an international notice issued by the International Criminal Police Organisation (INTERPOL) in respect of a person sought may be considered by the authority, either alone or with other information, in deciding whether a provisional warrant should be issued for the arrest of that person. (3) A report of the issue of a provisional warrant, with the information in justiﬁcation or a certiﬁed copy thereof, will be sent to the competent executive authority. (4) The competent executive authority who receives the information under paragraph (3) may decide, on the basis of that information and any other information which may have become available, that the person should be discharged, and so order. COMMITTAL PROCEEDINGS 5. (1) A person arrested under a warrant endorsed or issued in accordance with clause 3(1), or under a provisional warrant issued in accordance with clause 4, will be brought, as soon as practicable, before the competent judicial authority who will hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including power to remand

474

Appendix

and admit to bail, as if the person were charged with an offence committed in the requested country. (2) The competent judicial authority will receive any evidence which may be tendered to show that the extradition of the person sought is precluded by law. (3) Where a provisional warrant has been issued in accordance with clause 4, but within such reasonable time as the competent judicial authority may ﬁx: (a) a warrant has not been endorsed or issued in accordance with clause 3(1), or (b) where such endorsement or issue of a warrant has been made conditional on the issuance of an order to proceed, as mentioned in clause 3(2), no such order has been issued, the competent judicial authority will order the person to be discharged. (4) Where a warrant has been endorsed or issued in accordance with 3(1) the competent judicial authority may commit the person to prison to await extradition if – (a) such evidence is produced as establishes a prima facie case that the person committed the offence; and (b) extradition is not precluded by law but, otherwise, will order the person to be discharged. (5) Where a person sought is committed to prison to await extradition as mentioned in paragraph (4), notice of the fact will be given as soon as possible to the competent executive authority of the country in which committal took place. OPTIONAL ALTERNATIVE COMMITTAL PROCEEDINGS 6. (1) Two or more countries may make arrangements under which clause 5(4) will be replaced by paragraphs 2–4 of this clause or by other provisions agreed by the countries involved. (2) Where a warrant has been endorsed or issued as mentioned in clause 3(1), the competent judicial authority may commit the person sought to prison to await extradition if – (a) the contents of a record of the case received, whether or not admissible in evidence under the law of the requested country, and any other evidence admissible under the law of the requested country, are sufﬁcient to warrant a trial of the charges for which extradition has been requested; and (b) extradition is not precluded by law, but otherwise will order that the person be discharged.

Appendix

475

(3) The competent judicial authority will receive a record of the case prepared by an investigating authority in the requesting country if it is accompanied by – (a) an afﬁdavit of an ofﬁcer of the investigating authority stating that the record of the case was prepared by or under the direction of that ofﬁcer, and that the evidence has been preserved for use in court; and (b) a certiﬁcate of the Attorney General of the requesting country that in his or her opinion the record of the case discloses the existence of evidence under the law of the requesting country sufﬁcient to justify a prosecution. (4) A record of the case will contain – (a) particulars of the description, identity, nationality and, to the extent available, whereabouts of the person sought; (b) particulars of each offence or conduct in respect of which extradition is requested, specifying the date and place of commission, the legal deﬁnition of the offence and the relevant provisions in the law of the requesting country, including a certiﬁed copy of any such deﬁnition in the written law of that country; (c) the original or a certiﬁed copy of any document of process issued in the requesting country against the person sought for extradition ; (d) a recital of the evidence acquired to support the request for extradition; and (e) a certiﬁed copy, reproduction or photograph of exhibits or documentary evidence. SUPPLEMENTARY INFORMATION 7. (1) If it considers that the material provided in support of a request for extradition is insufﬁcient, the competent authority in the requested country may seek such additional information as it considers necessary from the requesting country, to be provided within such reasonable period of time as it may specify. (2) Where a request under paragraph (1) is made after committal proceedings have commenced the competent judicial authority in the requested country may grant an adjournment of the proceedings for such period as that authority may consider reasonable for the material to be furnished, which aggregate period should not exceed 60 days. CONSENT ORDER FOR RETURN 8. (1) A person sought may waive committal proceedings, and if satisﬁed that the person sought has voluntarily and with an understanding of its signiﬁcance

476

Appendix requested such waiver, the competent judicial authority may make an order by consent for the committal of the person sought to prison, or for admission to bail, to await extradition. (2) The competent executive authority may thereafter order extradition at any time, notwithstanding the provisions of clause 9. (3) The provisions of clause 20 shall apply in relation to a person sought extradited under this clause unless waived by the person.

RETURN OR DISCHARGE BY EXECUTIVE AUTHORITY 9.

After the expiry of 15 days from the date of the committal of a person sought, or, if a writ of habeas corpus or other like process is issued, from the date of the ﬁnal decision of the competent judicial authority on that application (whichever date is the later), the competent executive authority will order extradition unless it appears to that authority that, in accordance with the provisions set out in this Scheme, extradition is precluded by law or should be refused, in which case that authority will order the discharge of the person.

DISCHARGE BY JUDICIAL AUTHORITY 10. (1) Where after the expiry of the period mentioned in paragraph (2) a person sought has not been extradited an application to the competent judicial authority may be made by or on behalf of the person for a discharge and if – (a) reasonable notice of the application has been given to the competent executive authority, and (b) sufﬁcient cause for the delay is not shown, the competent judicial authority will order the discharge of the person. (2) The period referred to in paragraph (1) will be prescribed by law and will be one expiring either – (a) not later than two months from the person’s committal to prison, or (b) not later than one month from the date of the order for extradition made in accordance with clause 9. HABEAS CORPUS AND REVIEW 11. (1) It will be provided that an application may be made by or on behalf of a person sought for a writ of habeas corpus or other like process. (2) It will be provided that an application may be made by or on behalf of the government of the requesting country for review of the decision of the competent judicial authority in committal proceedings.

Appendix

477

POLITICAL OFFENCE EXCEPTION 12. (1) (a) The extradition of a person sought will be precluded by law if the competent authority is satisﬁed that the offence is of a political character; (b) Sub paragraph (a) shall not apply to: (i) offences established under any multilateral international convention to which the requesting and the requested countries are parties, the purpose of which is to prevent or repress a speciﬁc category of offences and which imposes on the parties an obligation either to extradite or to prosecute the person sought; (ii) offences for which the political offence or offence of political character ground of refusal is not applicable under international law. (c) If the competent executive authority is empowered by law to certify that the offence of which a person sought is accused is an offence of a political character, and so certiﬁes in a particular case, the certiﬁcate will be conclusive in the matter and binding upon the competent judicial authority for the purposes mentioned in this clause. (2) (a) A country may provide by law that certain acts shall not be held to be offences of a political character including: (i) an offence against the life or person of a Head of State or a member of the immediate family of a Head of State or any related offence (i.e. aiding and abetting, or counseling or procuring the commission of, or being an accessory before or after the fact to, or attempting or conspiring to commit such an offence), (ii) an offence against the life or person of a Head of Government, or of a Minister of a Government, or any related offence as described above, (iii) murder, or any related offence as described above, (iv) any other offence that a country considers appropriate. (b) A country may restrict the application of any of the provisions made under sub paragraph (b) to a request from a country which has made similar provisions in its laws. 13. The extradition of a person sought also will be precluded by law if – (a) it appears to the competent authority that: (i) the request for extradition although purporting to be made for an extradition offence was in fact made for the purpose of prosecuting or punishing the person on account of race, religion, sex, nationality or political opinions, or

478

Appendix (ii) that the person may be prejudiced at trial or punished, detained or restricted in personal liberty by reason of race, religion, sex, nationality or political opinions. (b) the competent authority is satisﬁed that by reason of (i) the trivial nature of the case, or (ii) the accusation against the person sought not having been made in good faith or in the interests of justice, or (iii) the passage of time since the commission of the offence, or (iv) any other sufﬁcient cause, it would, having regard to all the circumstances be unjust or oppressive or too severe a punishment for the person to be extradited or, as the case may be, extradited before the expiry of a period speciﬁed by that authority. (c) the competent authority is satisﬁed that the person sought has been convicted (and is neither unlawfully at large nor at large in breach of a condition of a licence to be at large), or has been acquitted, whether within or outside the Commonwealth, of the offence for which extradition is sought.

DISCRETIONARY BASIS FOR REFUSAL OF EXTRADITION 14. A request for extradition may be refused in the discretion of the competent authority of the requested country if – (a) judgment in the requesting country has been rendered in circumstances where the accused was not present; and (i) no counsel appeared for the accused; or (ii) counsel instructed and acting on behalf of the accused was not permitted to participate in the proceedings; (b) the offence for which extradition is requested has been committed outside the territory of either the requesting or requested country and the law of the requested country does not enable it to assert jurisdiction over such an offence committed outside its territory in comparable circumstances; (c) the person sought has, under the law of either the requesting [or requested] country become immune from prosecution or punishment because of [any reason, including] lapse of time or amnesty; (d) the offence is an offence only under military law or a law relating to military obligations.

Appendix

479

DISCRETIONARY GROUNDS OF REFUSAL 15. (1) Any country may adopt the provisions of this clause but, where they are adopted, any other country may in relation to the ﬁrst country reserve its position as to whether it will give effect to the other clauses of the Scheme or will give effect to them subject to such exceptions and modiﬁcations as appear to it to be necessary or expedient or give effect to any arrangement made under clause 23(a). (2) A request for extradition may be refused if the competent authority of the requested country determines – (a) that upon extradition, the person is likely to suffer the death penalty for the extradition offence and that offence is not punishable by death in the requested country; and (b) it would be, having regard to all the circumstances of the case and to the likelihood that the person would be immune from punishment if not extradited, unjust or oppressive or too severe a punishment for extradition to proceed. (c) In determining under paragraph (a), whether a person would be likely to suffer the death penalty, the executive authority shall take into account any representations which the authorities of the requesting country may make with regard to the possibility that the death penalty, if imposed, will not be carried out. (3) (a) A request for extradition may be refused on the basis that the person sought is a national or permanent resident of the requested country. (b) For the purpose of sub paragraph a, a person shall be treated as a national of a country that is – (i) a Commonwealth country of which he or she is a citizen; or (ii) a country or territory his or her connection with which determines national status. (c) The assessment under paragraph (b) should be at the date of the request. ALTERNATIVE MEASURES IN THE CASE OF REFUSAL 16. (1) For the purpose of ensuring that a Commonwealth country cannot be used as a haven from justice, each country which reserves the right to refuse to extradite nationals or permanent residents in accordance with clause 15 paragraph (3), will take, subject to its constitution, such legislative action and other steps as may be necessary or expedient in the circumstances to facilitate the trial or punishment of a person whose extradition is refused on that ground.

480

Appendix (2) The legislative action necessary to give effect to paragraph (1) may include – (a) providing that the case be submitted to the competent authorities of the requested country for prosecution; (b) permitting: (i) the temporary extradition of the person to stand trial in the requesting country on condition that, following trial and sentence, the person is returned to the requested country to serve his or her sentence; and (ii) the transfer of convicted offenders; or (c) enabling a request to be made to the relevant authorities in the requesting country for the provision to the requested country of such evidence and other information as would enable the authorities of the requested country to prosecute the person for the offence.

COMPETENT AUTHORITY 17. (1) The competent authorities for the purpose of clauses 12, 13, 14 and 15 will include (a) any judicial authority which hears or is competent to hear an application described in clause 11, and (b) the executive authority responsible for orders for extradition. (2) It will be sufﬁcient compliance with sub paragraphs 12, 13, 14 and 15 if a country decides that the competent authority for those purposes is exclusively the judicial authority or the executive authority. POSTPONEMENT OF EXTRADITION AND TEMPORARY TRANSFER OF PRISONERS TO STAND TRIAL 18. (1) Subject to the following provisions of this clause, where a person sought – (a) has been charged with an offence that may be tried by a court in the requested country or (b) is serving a sentence imposed by a court in the requested country, then until discharge (by acquittal, the expiration or remission of sentence, or otherwise) extradition will either be precluded by law or be subject to refusal by the competent executive authority as the law of the requested country may provide.

Appendix

481

(2) Subject to the provisions of this Scheme, a prisoner serving such a sentence who is also a person sought may, at the discretion of the competent executive authority of the requested country, be extradited temporarily to the requesting country to enable proceedings to be brought against the prisoner in relation to the extradition offence on such conditions as are agreed between the respective countries. PRIORITY WHERE TWO OR MORE REQUESTS MADE 19. (1) Where the requested country receives two or more requests from different countries for the extradition of the same person, the competent executive authority will determine which request will proceed and may refuse the other requests. (2) In making a determination under paragraph (1), the authority will consider all the circumstances of the case and in particular – (a) the relative seriousness of the offences, (b) the relative dates on which the requests were made, and (c) the citizenship or other national status and ordinary residence of the person sought. SPECIALTY RULE 20. (1) This clause relates to a person sought who has been extradited from one country to another, so long as the person has not had a reasonable opportunity of leaving the second mentioned country. (2) In the case of a person sought to whom this clause relates, detention or trial in the requesting country for any offence committed prior to extradition (other than the one for which the person was extradited or any lesser offence proved by the facts on which extradition was based), without the consent of the requested country, will be precluded by law. (3) When considering a request for consent under paragraph (2) the executive authority of the requested country may seek such particulars as it may require in order that it may be satisﬁed that the request is otherwise consistent with the principles of this Scheme. (4) Consent under paragraph (2) shall not be unreasonably withheld but where, in the opinion of the requested country, it appears that, on the facts known to the requesting country at the time of the original request for extradition, application should have been made in respect of such offences at that time, that may constitute a sufﬁcient basis for refusal of consent. (5) The requesting country shall not extradite a person sought who has been surrendered to that country pursuant to a request for extradition, to a third

482

Appendix country for an offence committed prior to extradition, without the consent of the requested country. (6) In considering a request under paragraph (5) the requested country may seek the particulars referred to in paragraph (3) and shall not unreasonably withhold consent. (7) Nothing in this clause shall prevent a court in the requesting country from taking into account any other offence, whether an extradition offence or not under this Scheme, for the purpose of passing sentence on a person convicted of an offence for which he or she was surrendered, where the person consents.

RETURN OF ESCAPED PRISONERS 21. (1) In the case of a person who – (a) has been convicted of an extradition offence by a court in any country and is unlawfully at large before the expiry of the sentence for that offence, and (b) is found in another country, the provisions set out in this Scheme, as applied for the purposes of this clause by paragraph (2), will govern extradition to the country in which the person was convicted. (2) For the purposes of this clause this Scheme shall be construed, subject to any necessary adaptations or modiﬁcations, as though the person unlawfully at large were accused of the offence for which there is a conviction and, in particular – (a) any reference to a person sought shall be construed as including a reference to such a person as is mentioned in paragraph (1); and (b) the reference in clause 5(4) to evidence that establishes a prima facie case shall be construed as a reference to such evidence as establishes that the person has been convicted. (3) The references in this clause to a person unlawfully at large shall be construed as including reference to a person at large in breach of a condition of a licence to be at large. ANCILLARY PROVISIONS 22. Each country will take, subject to its constitution, any legislative and other steps which may be necessary or expedient in the circumstances to facilitate and effectuate – (a) the transit through its territory of a person sought who is being extradited under this Scheme;

Appendix

483

(b) the delivery of property found in the possession of a person sought at the time of arrest which may be material evidence of the extradition offence; and (c) the proof of warrants, certiﬁcates of conviction, depositions and other documents. ALTERNATIVE ARRANGEMENTS AND MODIFICATIONS 23. Nothing in this Scheme shall prevent – (a) the making of arrangements between Commonwealth countries for further or alternative provision for extradition, or (b) the application of the Scheme with modiﬁcations by one country in relation to another which has not brought the Scheme fully into effect.

Index Abduction 308–28, 374–75 Active Personality Principle 12, 84–85, 173–74, 362, 377–38, 401 Afghanistan 82, 92, 97, 154, 195, 272, 274, 275, 299, 309, 319, 329, 334, 383, 425 Aggression 1–2, 6, 9, 229, 234, 255, 289, 307, 356, 406–07 Algeria 32, 81, 106, 176, 183, 208, 219, 244, 342 Amparo (see Habeas corpus) Anarchism 193, 199, 200, 209, 226, 256, 287 Arab League 32, 170–71, 260 Argentina 65, 89, 97, 98, 100, 115, 166, 244, 246, 308–10, 334, 340, 348, 367, 373, 375 Armed Conﬂict (see also, War) 229–32, 288–92, 347–416 Assistance, Mutual Legal 55–60, 61, 73, 93, 96, 122, 132, 137, 273, 294–95, 298 Asylum (see also Non-refoulement and Refugees) 242–44, 419–25 Attentat Clause 199, 260 Australia 11, 30, 39, 41–42, 48, 53, 60, 116–17, 129, 239, 283, 296–97, 301, 348, 373 Austria 32, 34, 36, 48, 165, 178, 296, 363, 423 Aut dedere, aut judicare 292–300, 377–82 Baader-Meinhof Gang 200, 202, 205, 235, 241 Bad faith requests 165, 177–78, 182–84 Basle 170 Belgium 32, 33, 34, 36, 48, 95–97, 190, 194, 197, 259, 260, 297, 380–82 Benelux 11, 35–36, 41, 60 Bolivia 326, 328 Bonn Declaration 271–72, 299 Bosnia-Herzegovina 32, 37, 48, 350, 352–54, 377, 387, 391, 399 Botswana 28, 39 Brazil 29, 97, 134, 170 Burma 334 Cairo-Arusha Principles 93, 95 Cambodia 349, 394, 398–400, 402, 415 Canada 39, 43, 59, 77–78, 116, 117, 156–59, 299, 339, 378, 381–82 Cayman Islands 59 Chile 85, 89, 97, 98–101, 310–11

Colombia 15, 22, 50, 85, 172, 189, 191, 192, 195, 237, 272, 328, 378, 409 Commonwealth, Scheme 12, 21, 28, 38–40, 41, 56, 57, 59, 74, 106, 113, 115, 123, 129, 132, 134, 169, 176, 177, 178, 179, 181, 182, 184, 187, 207, 211, 212, 260, 275, 302, 321–22, 472–83 and Mutual Legal Assistance 59 Convicted Fugitives 136–37 Costa Rica 213, 271 Council of Europe – see various treaties Crimes Against Humanity 351–416 Crimes Against Peace 356, 364, 371, 374, 422, 424 Croatia 32, 37, 45, 47, 48, 116, 365, 369, 375, 389 Cuba 294 Cyprus 28, 32, 34, 39, 264 Czech Republic (and the former Czechoslovakia) 32, 34, 37, 423 Death Penalty 147–63, 400, 404 De Facto Extradition 308–50 Délit Complexe 203 Délit Connexe 204, 208 Denmark 32, 34, 36, 37, 48, 51, 363 Deportation 331–345, 373–74 Desertion – see Military Offences Detention, Pre-hearing 64–67 Diplomats, Protection of 272, 289 Disguised Extradition – see De Facto Extradition Double Criminality 101–12 Double Jeopardy – see Non bis in idem Draft Code of Crimes Against the Peace and Security of Mankind 6, 9, 234, 289, 293 Drugs 22, 30, 34, 55, 73, 78, 80, 87, 109, 110, 166, 172, 289, 305–06, 313, 406 East Timor (Timor Leste) 349, 350, 400–03, 415 Eastern Europe (former) 37 Egypt 32, 309, 311, 341 Eichmann 88, 101, 308–10, 314, 327, 328, 352, 367, 374–75, 379, 380 El Salvador 190 Espionage 203

486

Index

European Arrest Warrant (EAW) 20, 35–36, 39, 41, 42, 70, 71, 73–74, 102, 103, 109, 121, 149, 172, 187, 259, 264, 418, 419, 429–45 European Community – see European Union European Convention on Extradition 31, 32–34, 36, 37, 38, 41, 56, 61, 74, 107, 112, 115, 116, 121, 122, 134, 147, 160, 166, 168–69, 170, 172, 174, 176, 181, 182, 185, 204, 206, 282, 370, 426 European Convention on Human Rights (ECHR) (see also Human Rights) 63–66, 75, 125, 138–55, 160, 163–69, 179, 227, 258, 262, 267, 275, 283, 284–85, 300, 324–25, 330, 338, 342, 344, 350, 374, 405, 422, 424, 425 European Convention on the Suppression of Terrorism (ECST) 21, 34–35, 90, 121, 150, 208, 209, 210–11, 239, 258–59, 261–66, 282 European Union 10–11, 20, 22, 28, 34–36, 41, 42, 55–60, 70, 71, 74, 83, 102, 103, 113, 137, 147, 155, 170, 171, 187, 188, 206, 241, 258, 264, 284, 331–32, 333, 389, 406, 418, 425–26 EUROPOL 56–58 Evidence, Prima Facie case 4, 20, 27, 33, 41, 46, 62, 114–22, 127, 129, 131, 134 Rules of 44–46, 122–34, 405, 407 Exclusion 243, 371–72, 332–333, 422–23 Executive discretion 36, 40, 41, 53, 62, 67–72, 75, 121, 319, 334 Extradition, Crime 11, 72–75, 338 Deﬁnition 14–17 Duty to grant 14, 42–43 Hearing 72–136 History 17–23 Multilateral conventions 31–41 Simpliﬁed schemes 11, 22, 41–42 Treaties 25, 29–41 Universal treaty 39 Without treaty 42–44 Extraordinary Chambers (Cambodia) 349, 398–402 Extraordinary Rendition 329–31 Fair trial (see also, Human rights) 25, 45, 163–67, 281–86 Federal Republic of Yugoslavia (Serbia and Montenegro) 32, 37, 43–44, 44–45, 43, 47, 48, 51, 116, 153, 207, 327, 340, 375, 389 Fiji 28, 38, 39 Financing of Terrorism Convention 211, 233, 271–73, 276, 295 Finland 32, 34, 36, 37, 48, 168–69 Fiscal Offences 35, 112–14 Flag, Principle of Jurisdiction 78, 83

Former Soviet Union (U.S.S.R.) 37 France 10–11, 17–20, 30, 32, 34, 36, 43, 48, 62, 71, 86, 89, 115, 130, 149, 165, 167, 168, 181, 205, 217–18, 252, 272, 277, 299, 301, 339, 374, 376, 377, 378, 413, 427 Gambia 39, 334 Geneva Conventions on the Laws of War 91, 92, 97, 196, 229–32, 234, 289, 291, 307, 357, 361, 362, 364, 365, 370, 372, 379, 381, 382, 383, 385, 386, 387, 399, 407, 415 Grave Breaches 91–93, 96, 289, 357, 361, 362, 364, 365, 372, 383, 385, 386, 399, 407, 415 Genocide 1, 5, 6, 8, 9, 92, 97, 109, 147, 210, 211, 234, 289–90, 339, 347–357, 360–61, 366, 368, 370, 371, 376–77, 381, 382, 384, 385, 393, 396, 399, 401, 403, 404, 405, 406, 407, 411 Germany 32, 42, 86, 97, 116, 167, 170, 172, 174, 198, 200, 218, 272, 299, 309, 311, 362, 363, 366, 368, 370, 373–74, 378, 387 Ghana 114, 304 Greece 32, 34, 36, 48, 170 Grotius 42, 43, 293 Habeas corpus/ amparo 116, 135, 182, 206 Hijacking 10, 266, 271–74, 290, 291, 297, 299, 423–25 Holy See (see Vatican) Hong Kong 52–53, 124, 183–84, 188–89 Hostages 22, 73, 90, 92, 97, 231, 266, 272, 273, 275, 289, 290, 305, 356, 364, 386, 424 Human Rights, African Charter of Human and Peoples Rights 139, 310, 420 American Convention on Human Rights 139, 145, 191 American Declaration of the Rights of Man 139 Convention Against Torture 139, 155, 162, 350, 401 Diplomatic Assurances 148, 149, 154, 159, 162–63, 183, 341, 346, 421 European Convention on Human Rights 63–66, 75, 125, 138–55, 160, 163–69, 179, 227, 258, 262, 267, 275, 283, 284–85, 300, 324–25, 330, 338, 342, 344, 350, 374, 405, 422, 424, 425 Extradition hearing 64–67, 142–47 Fair Trial 25, 45, 163–67, 281–86 Generally 3, 8–9, 13, 14, 16, 19, 21, 25, 43, 44, 46, 53, 54, 56, 63, 64, 65, 66, 68, 69, 70, 75, 85, 93, 94, 130–31, 138–67, 227, 234, 236, 237, 240, 248, 249, 253, 257, 262, 268–69, 273, 279, 283–85, 298, 300–03, 309–10, 316, 318, 350, 363, 365,

Index 374–76, 387, 392, 399–400, 405, 407, 414, 415 International Covenant on Civil and Political Rights 139–40, 143–44, 146–48, 156–57, 164–65, 236, 284–85, 387, 400 Right to Life 25, 147–63, 285, 376 Torture 25, 92–100, 130–31, 139, 149–55, 160–63, 261, 267, 273, 275, 284–85, 289–90, 309, 313–19, 324, 329–30, 342, 345, 350, 353, 360, 378, 386, 388, 401, 408, 414, 418, 421–24 Iceland 11, 32, 36, 37, 51–52 Immunity 89, 92, 95–100, 137, 189–92, 296, 312, 315, 350, 378, 412–14 India 28, 38, 39–40, 43, 266–67 Inter-American Convention Against Terrorism 267–69 International Committee of the Red Cross (ICRC) 361–62 International Criminal Court 1, 3, 6, 8, 9, 13, 14, 15, 16, 22, 23, 44, 46, 49–50, 54, 73, 93, 95, 168, 188, 196, 232, 288–292, 347, 348, 359, 360, 362, 385, 395, 396, 406–14, 416 and Complementarity 410, 446, 447, 457 and Deﬁnition of Crimes 406–09, 448–55 Jurisdiction 409, 455–57 Primacy 49, 457 Prosecutor 409, 410, 411, 456–57 and the Security Council 410, 457 Transfer 49–50, 467–69 Trigger Mechanisms 409, 455–57 International criminal law 1, 2, 5–7, 9, 15 International Criminal Tribunal for the former Yugoslavia (ICTY) 44–49, 133, 351–60, 384–93 International Criminal Tribunal for Rwanda (ICTR) 44–49, 133, 351–60, 384–93 INTERPOL 56–57 Ireland 32, 34, 36, 41–42, 43, 132, 215, 216–17, 221–26 Irish National Liberation Army (INLA) 198, 222–26, 277 Irish Republican Army (IRA) 195, 209, 214–16, 222–26, 277, 297 Israel 32, 88, 116, 368, 375, 379–80, 382 Italy 14, 22, 32, 34, 36, 47–48, 51, 309, 311, 328, 342, 343, 347–48, 363, 376, 378, 382, 389 Japan 123–24 Joinet Principles 94, 278–79, 300 Jordan 32, 161 Jurisdiction 75–112 and Double Criminality 109–12 Extraterritoriality 84–101 Principles of 75–101

487

Kenya 39, 47, 76–77, 126 Kosovo 43–44, 47, 92–93, 153, 327, 349, 363, 374, 377, 398, 402–03, 415 Kuwait 32 League of Nations 288 Legislation, Municipal (domestic) 37–39, 41–43 Reciprocal 37, 42, 52, 53 Libya 32, 89, 96, 161, 171, 178, 274–75, 286–87, 299, 391 Lithuania 32, 34, 37, 55 Lockerbie 171, 178, 274–75, 286–87, 299 Luxembourg 32, 34, 36, 79, 93 Malaysia 38–39 Mauritius 39 Military Offences 175–77 Morocco 149 Mozambique 39 Nationality, and Jurisdiction – see Active Personality Principle and Non-Extradition of Nationals 167–75 Nauru 39 Netherlands 32, 34, 36, 48, 100, 102, 106, 155, 169, 171, 175, 197, 225, 259, 264, 275, 340, 350, 380 New Zealand 38, 39, 41, 42, 48, 322, 323, 325 Nigeria 39, 331 Non (Ne) bis in idem 48–50, 75, 174, 175, 411, 460–61 Non-Inquiry, Rule of 68–69, 152 Non-Refoulement 282, 420–22, 425, 427 Nordic Union 37, 41, 168–70 Norway 32, 36–37, 48, 169, 264, 274, 365, 393 Nuclear Materials Convention 272 Nuremberg International Military Tribunal 231, 244, 295, 351, 356–57, 358, 359–60, 364, 365, 376, 382, 386, 388, 403, 406 Palestine 39, 191, 215, 274 Passage of Time 177–79, 179–82 Passive Personality Principle 12, 88–90, 101, 110, 379, 401 Peru 310–11, 340 Piracy 22, 73, 87, 91, 94, 98, 272, 295, 380, 382 Plea Bargaining 184–85 Poland 32, 34, 37 Political Offences, Generally 20, 21, 23, 35, 37, 41, 103, 131, 141, 150–51, 152, 166, 175, 177, 193–304, 338, 363–71, 375, 417–18, 423

488

Index

History 197–200 Portugal 32, 34, 36 Prima Facie Case – see Evidence Princeton Principles 94–95 Protective Principle 11, 85–88, 89, 90, 101, 109, 295, 379 Provisional Warrants 60, 64–66 Pufendorf 42

Sudan 201, 274 Suppression of Terrorist Bombings Convention 211, 272–73, 276, 280, 295 Sweden 10–12, 32, 34, 36, 37, 48, 85, 161, 169, 247, 264, 347 Switzerland 4, 24, 26, 30, 32, 43, 48, 52, 59, 116, 123, 160, 165, 168, 218–21, 227–28, 243, 277–81, 300–02 Syria 32, 190, 343

Reciprocity 25–29, 38–40, 42, 72, 74, 121, 129, 172–73, 189 Red Army Faction (RAF) 277 Re-Extradition 61, 187–89 Refugees 155, 169, 196, 208, 242–43, 279, 282, 417–28 Representational Principle 90–91 Res Judicata 134–36 Rhodesia (as was); see also, Zimbabwe 52, 321 Rome Statute 1998 (see also, International Criminal Court) 5, 6, 9, 49–50, 93, 196, 289–91, 348–49, 356–57, 359, 387, 396, 406–14, 446–71 Royal Commission on Extradition (1878) 220 Rwanda 8, 18, 44–48, 54, 95, 97, 136, 153, 193, 232, 339, 348, 350, 352, 363, 371, 381, 384, 393

Territoriality Principle, Qualiﬁed 76–84 Simple 76 Terrorism, Generally 11, 13, 14, 15, 21, 22, 28, 30, 34, 40–41, 42, 43, 57, 58, 65, 73, 75, 80, 82, 87–88, 89, 90, 92, 100, 103, 111, 115, 121, 130, 140, 150, 155, 161, 173, 191, 232–42, 261–77, 305–07, 333, 359, 382, 386, 409, 423–25, 427 State Sponsored 233–35, 238 Thailand 81, 334 Torture – see Human Rights Triviality 177–79 Turkey 32, 42, 78, 116, 143, 145–46, 149, 150, 166, 184, 210, 261, 274, 283, 322, 343–45, 421

Saudi Arabia 32 Saxony 20, 186 Schengen Accord 11, 21, 35–37, 58, 75, 174–75 ‘Seajacking’ (The case of the Achille Lauro) 87, 89, 191, 195, 272, 326 Security Council 95, 133, 140, 196, 231, 237, 272, 275, 304, 309, 314, 328, 348, 359, 384–95, 403, 404, 406, 409, 410, 411, 413, 415, 416, 423 Seychelles 39, 51, 272, 299–300 Sierra Leone 39, 44, 52, 349, 394–98, 415 Singapore 39 Slovak Republic 32, 34, 37 South Africa 32, 39, 52, 89, 116–17, 159, 239, 272, 299, 323–25, 341 Spain 29, 32, 34, 36, 48, 55, 66, 89, 97, 99, 101, 115, 149, 166, 218, 252, 259, 277, 347, 381 Special Court for Sierra Leone 349, 394–98, 415 Special Panels (East Timor) 400–02 Specialty or Speciality 185–89 Sri Lanka 38, 39, 140, 211, 272, 274 ‘Stable Democracies’ 250–59 State Succession, ‘Clean Slate’ Theory 52–53 Generally 51–53

United Arab Emirates 30 United Kingdom 19, 20, 21, 27, 28–29, 30, 32, 34, 36, 39, 40, 41, 43, 45, 48, 51, 52, 55, 59, 62, 67, 68, 69, 71, 75, 76, 78, 79–84, 87, 90, 92, 96, 97, 98–100, 109, 110, 112, 113, 114, 115, 116, 117–21, 122–123, 125, 127, 128–31, 132–133, 134, 135, 149, 152–54, 161, 163, 164, 165, 167, 169–72, 178, 179, 180, 189, 206–12, 266–67, 319–25, 330–39, 341, 351, 363, 368, 372, 373, 377–78, 379, 381, 400, 425 United Nations (see also, Security Council) 2, 6, 25, 30, 31, 40, 43–44, 48, 58, 59, 78, 92, 93, 95, 96, 133, 153, 155, 162, 188, 235–38, 270–77, 281, 286, 289, 293, 294, 295, 296, 297, 298, 299, 300, 309, 314, 327, 328, 330, 347, 348–49, 350, 361–62, 372, 374–75, 379, 381, 382, 383, 384–93, 394, 396–97, 398–403, 406, 415, 421–27 United States of America 20, 21, 22, 27, 43, 48, 51, 52, 53, 61, 62, 68, 77, 79, 83–84, 85, 87, 89, 105, 108, 110, 116, 118–19, 123, 124, 125, 127, 128, 130, 133, 134, 136, 152, 154, 157, 159, 163, 164, 168, 172, 184–85, 189, 195, 205, 212–17, 245–46, 259, 269–70, 272, 274–75, 283, 286, 287, 292, 295, 301, 306, 307, 310–19, 326, 328, 333–35, 340, 342, 349–50, 363, 365, 368–369, 372–73, 412–14

Index Universality Principle 91–101, 292–300, 379–82 Uruguay 97, 313 Vatican 47, 190, 389 Voluntary return 115 War (see also, Armed Conﬂict), Crimes/Criminals (lato sensu) 48, 50, 51, 53, 88, 93, 94, 98, 109, 170, 174, 175, 196, 216, 229–32, 289–90, 293, 309, 351–416, 417, 422, 424 Effect on Extradition Treaties 50–51

489

‘War on Terror’ 21–22, 155, 196, 232, 306, 329, 334 Warrant (see also, European Arrest Warrant) 27, 35–36, 41, 42, 45, 46, 48, 50, 56, 60–61, 62–63, 64–66, 72, 79, 89, 95, 96, 97, 104, 121–22, 136, 137 Yemen 32, 164 Zambia 39, 334 Zimbabwe 13, 24, 38, 96, 163, 321, 341

International Studies in Human Rights 1.

2. 3. 4. 5. 6. 7.

8. 9.

10. 11. 12. 13.

14. 15. 16. 17. 18. 19.

20. 21.

Bertrand G. Ramcharan: Humanitarian Good Ofﬁces in International Law. The Good Ofﬁces of the United Nations Secretary General in the Field of Human Rights. 1983 ISBN 90-247-2805-3 Bertrand G. Ramcharan: International Law and Fact-Finding in the Field of Human Rights. 1983 ISBN 90-247-3042-2 Bertrand G. Ramcharan: The Right to Life in International Law. 1985 ISBN 90-247-3074-0 Katarina TomaŠevski and Philip Alston: Right to Food. 1984 ISBN 90-247-3087-2 Arie Bloed, Pieter van Dijk: Essays on Human Rights in the Helsinki Process. 1985 ISBN 90-247-3211-5 K. Tornudd: Finland and the International Norms of Human Rights. 1986 ISBN 90-247-3257-3 Berth Verstappen and Hans Thoolen: Human Rights Missions. A Study of the Fact-Finding Practice of Non-Governmental Organizations. 1986 ISBN 90-247-3364-2 Hurst Hannum: The Right to Leave and Return in International Law and Practice. 1987 ISBN 90-247-3445-2 H. Danelius and Herman Burgers: The United Nations Convention Against Torture. A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 1988 ISBN 90-247-3609-9 David A. Martin: The New Asylum Seekers: Refugee Law in the 1980’s. The Ninth Sokol Colloquium on International Law. 1988 ISBN 90-247-3730-3 Cecilia Medina: The Battle of Human Rights. Gross, Systematic Violations and the InterAmerican System. 1988 ISBN 90-247-3687-0 Claus Gulmann, Lars Adam Rehof: Human Rights in Domestic Law and Development. Assistance Policies of the Nordic Countries. 1989 ISBN 90-247-3743-5 Bertrand G. Ramcharan: The Concept and Present Status of the International Protection of Human Rights. Forty Years After the Universal Declaration. 1989 ISBN 90-247-3759-1 Angela D. Byre: International Human Rights Law in the Commonwealth Caribbean. 1991 ISBN 90-247-3785-0 Natan Lerner: Group Rights and Discrimination in International Law. 1990 ISBN 0-79230-853-0 Shimon Shetreet: Free Speech and National Security. 1991 ISBN 0-79231-030-6 Geoff Gilbert: Aspects of Extradition Law. 1991 ISBN 0-79231-162-0 Philip E. Veerman: The Rights of the Child and the Changing Image of Childhood. 1992 ISBN 0-79231-250-3 Mireille Delmas-Marty: The European Convention for the Protection of Human Rights. International Protection versus National Restrictions. 1992 ISBN 0-79231-283-X Arie Bloed and Pieter van Dijk: The Human Dimension of the Helsinki Process. The Vienna Follow-up Meeting and its Aftermath. 1991 ISBN 0-79231-337-2 Lyal S. Sunga: Individual Responsibility in International Law for Serious Human Rights Violations. 1992 ISBN 0-79231-453-0

International Studies in Human Rights 22. 23. 24.

25. 26.

28. 29.

30.

31. 32.

33. 34. 35. 36.

37. 38. 39. 40. 41. 42.

Dinah Shelton and Stanislaw J. Frankowski: Preventive Detention. A Comparative and International Law Perspective. 1992 ISBN 0-79231-465-4 Michael Freeman and Philip E. Veerman: Ideologies of Children’s Rights. 1992 ISBN 0-79231-800-5 Stephanos Stavros: The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights. An Analysis of the Application of the Convention and a Comparison with Other Instruments. 1993 ISBN 0-79231-897-8 Allan Rosas, Diane Goodman and Jan Helgesen: Strength of Diversity. Human Rights and Pluralist Democracy. 1992 ISBN 0-79231-987-7 Andrew Clapham and Kees Waaldijk: Homosexuality: A European Community Issue. Essays on Lesbian and Gay Rights in European Law and Policy. 1993 ISBN 0-79232-038-7 Howard Charles Yourow: The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence. 1995 ISBN 0-79233-338-1 Lars Adam Rehof: Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of all Forms of Discrimination against Women. 1993. ISBN 0-79232-222-3 Allan Rosas, Arie Bloed, Liselotte Leicht and Manfred Nowak: Monitoring Human Rights in Europe. Comparing International Procedures and Mechanisms. 1993 ISBN 0-79232-383-1 Andrew Harding and John Hatchard: Preventive Detention and Security Law: A Comparative Survey. 1993 ISBN 0-79232-432-3 Yves Beigbeder: International Monitoring of Plebiscites, Referenda and National Elections. Self-Determination and Transition to Democracy. 1994 ISBN 0-79232-563-X Thomas David Jones: Human Rights: Group Defamation, Freedom of Expression and the Law of Nations. 1997 ISBN 90-411-0265-5 David M. Beatty: Human Rights and Judicial Review: A Comparative Perspective. 1994 ISBN 0-79232-968-6 Geraldine Van Bueren: The International Law on the Rights of the Child. 1995 ISBN 0-79232-687-3 Tom Zwart: The Admissibility of Human Rights Petitions. The Case Law of the European Commission of Human Rights and the Human Rights Committee. 1994 ISBN 0-79233-146-X Helene Lambert: Seeking Asylum. Comparative Law and Practice in Selected European Countries. 1995 ISBN 0-79233-152-4 E. Lijnzaad: Reservations to UN-Human Rights Treaties. Ratify and Ruin? 1994 ISBN 0-7923-3256-3 L.G. Loucaides: Essays on the Developing Law of Human Rights. 1995 ISBN 0-7923-3276-8 T. Degener and Y. Koster-Dreese (eds.): Human Rights and Disabled Persons. Essays and Relevant Human Rights Instruments. 1995 ISBN 0-7923-3298-9 J.-M. Henckaerts: Mass Expulsion in Modern International Union and Human Rights. 1995 ISBN 90-411-0072-5 N.A. Neuwahl and A. Rosas (eds.): The European Union and Human Rights. 1995 ISBN 90-411-0124-1

International Studies in Human Rights 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

55. 56. 57.

58.

59.

60. 61.

62.

H. Hey: Gross Human Rights Violations: A Search for Causes. A Study of Guatemala and Costa Rica. 1995 ISBN 90-411-0146-2 B.G. Tahzib: Freedom of Religion or Belief. Ensuring Effective International Legal Protection. 1996 ISBN 90-411-0159-4 F. de Varennes: Language, Minorities and Human Rights. 1996 ISBN 90-411-0206-X J. Raikka (ed.): Do We Need Minority Rights? Conceptual Issues. 1996 ISBN 90-411-0309-0 J. Brohmer: State Immunity and the Violation of Human Rights. 1997 ISBN 90-411-0322-8 C.A. Gearty (ed.): European Civil Liberties and the European Convention on Human Rights. A Comparative Study. 1997 ISBN 90-411-0253-1 B. Conforti and F. Francioni (eds.): Enforcing International Human Rights in Domestic Courts. 1997 ISBN 90-411-0393-7 A. Spiliopoulou Akermark: Justiﬁcations of Minority Protection in International Law. 1997 ISBN 90-411-0424-0 A. Boulesbaa: The U.N. Convention on Torture and the Prospects for Enforcement. 1997 ISBN 90-411-0457-7 S. Bowen (ed.): Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories. 1997 ISBN 90-411-0502-6 M. O’Flaherty and G. Gisvold (eds.): Post-War Protection of Human Rights in Bosnia and Herzegovina. 1998 ISBN 90-411-1020-8 A.-L. Svensson-McCarthy: The International Law of Human Rights and States of Exception. With Special Reference to the Travaux Préparatoires and the Case-Law of the International Monitoring Organs. 1998 ISBN 90-411-1021-6 G. Gilbert: Transnational Fugitive Offenders in International Law. Extradition and Other Mechanisms. 1998 ISBN 90-411-1040-2 M. Jones and L.A. Basser Marks (eds.): Disability, Divers-ability and Legal Change. 1998 ISBN 90-411-1086-0 T. Barkhuysen, M.L. van Emmerik and RH.P.H.M.C. van Kempen (eds.): The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order. 1999 ISBN 90-411-1152-2 S. Coliver, P. Hoffman, J. Fitzpatrick and S. Bowen (eds.): Secrecy and Liberty: National Security, Freedom of Expression and Access to Information. 1999 ISBN 90-411-1191-3 W.S. Heinz and H. Fruhling: Determinants of Gross Human Rights Violations by State and State-Sponsored Actors in Brazil, Uruguay, Chile, and Argentina. 1960-1990. 1999 ISBN 90-411-1202-2 M. Kirilova Eriksson: Reproductive Freedom. In the Context of International Human Rights and Humanitarian Law. 1999 ISBN 90-411-1249-9 M.B. Eryilmaz: Arrest and Detention Powers in English and Turkish Law and Practice in the Light of the European Convention on Human Rights. 1999 ISBN 90-411-1269-3 K. Henrard: Devising and Adequate System of Minority Protection. Individual Human Rights, Minority Rights and the Right to Self-Determination. 2000 ISBN 90-411-1359-2

International Studies in Human Rights 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

81 82.

83. 84.

K. Tomasevski: Responding to Human Rights Violations. 1946-1999. 2000 ISBN 90-411-1368-1 L.-V.N. Tran: Human Rights and Federalism. A Comparative Study on Freedom, Democracy and Cultural Diversity. 2000 ISBN 90-411-1492-0 C. Tiburcio: The Human Rights of Aliens under International and Comparative Law. 2001 ISBN 90-411-1550-1 E. Brems: Human Rights: Universality and Diversity. 2001 ISBN 90-411-1618-4 C. Bourloyannis-Vrailas and L.-A. Sicilianos: The Prevention of Human Rights Violations. 2001 ISBN 90-411-1672-9 G. Ulrich and K. Hastrup: Discrimination and Toleration. New Perspectives. 2001 ISBN 90-411-1711-3 V.O. Orlu Nmehielle: African Human Rights System. Its Laws, Practice and Institutions. 2001 ISBN 90-411-1731-8 B.G. Ramcharan: Human Rights and Human Security. 2002 ISBN 90-411-818-7 B.G. Ramcharan: The United Nations High Commissioner for Human Rights. The Challenges of International Protection. 2002 ISBN 90-411-1832-2 C. Breen: The Standard of the Best Interests of the Child. A Western Tradition in International and Comparative Law. 2002 ISBN 90-411-1851-9 M. Katayanagi: Human Rights Functions of United Nations Peacekeeping Operations. 2002 ISBN 90-411-1910-8 O.M. Arnadottir: Equality and Non-Discrimination under the European Convention on Human Rights. 2002 ISBN 90-411-1912-4 B.G. Ramcharan: The Security Council and the Protection of Human Rights. 2002 ISBN 90-411-1878-0 E. Fierro: The EU’s Approach to Human Rights Conditionality in Practice. 2002 ISBN 90-411-1936-1 Natan Lerner: Group Rights and Discrimination in International Law. Second Edition. 2002 ISBN 90-411-1982-5 S. Leckie (ed.): National Perspectives on Housing Rights. 2003 ISBN 90-411-2013-0 L.C. Reif: The Ombudsman, Good Governance and the International Human Rights System. 2004 ISBN 90-04-13903-6 Mary Dowell-Jones: Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deﬁcit. 2004 ISBN 90-04-13908-7 Li-ann Thio: Managing Babel: The International Legal Protection of Minorities in the Twentieth Century. 2005 ISBN 90-04-14198-7 Klaus Dieter Beiter: The Protection of the Right to Education by International Law: Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights. 2005 ISBN 90-04-14704-7 Janneke Gerards: Judicial Review in Equal Treatment Cases. 2005 ISBN 90-04-14379-3 Virginia A. Leary and Daniel Warner (eds.): Social Issues, Globalisation and International Institutions: Labour Rights and the EU, ILO, OECD and WTO. 2006 ISBN-90-04-14579-6

International Studies in Human Rights 85.

86. 87. 88. 89.

J.K.M. Gevers, E.H. Hondius and J.H. Hubben (eds.) Health Law, Human Rights and the Biomedicine Convention: Essays in Honour of Henriette Roscam Abbing, 2005 ISBN 90 04 14822 1 Claire Breen, Age Discrimination and Children’s Rights, 2005 ISBN 90 04 14827 2 B.G.Ramcharan, Human Rights Protection in the Field, 2005 ISBN 90 04 14847 7 Geoff Gilbert, Responding to International Crime, Second Edition, 2006 ISBN 90 04 15276 8 Tom Obokata, Trafﬁcking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach, 2006 ISBN 90 04 15405 1

This series is designed to shed light on current legal and political aspects of process and organization in the ﬁeld of human rights MARTINUS NIJHOFF PUBLISHERS

– LEIDEN •

BOSTON

Responding to International Crime (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

The Security Council and the Protection of Human Rights (International Studies in Human Rights) (International Studies in Human Rights)

The Human Rights of Aliens under International and Comparative law (International Studies in Human Rights)

Human Rights in International Relations (Themes in International Relations)

Human Rights and International Relations

Guide To International Human Rights Practice

Human Rights in International Relations (Themes in International Relations)

Biotechnologies and International Human Rights

Human Rights in International Relations (Themes in International Relations)

Human Rights in International Relations (Themes in International Relations)

Human Rights in African Prisons (Research in International Studies)

The Right of the Child to Religious Freedom in International Law (International Studies in Human Rights)

International Human Rights Litigations in U.S. Courts

Trafficking of Human Beings from a Human Rights Perspective (International Studies in Human Rights)

Due Process and International Terrorism (Studies in Intercultural Human Rights)

International Human Rights, Decolonisation, Globalisation: Becoming Human (Routledge Studies in International Law, 3)

Human Rights in Turmoil: Facing Threats, Consolidating Achievements (International Studies in Human Rights)

Human Rights Protection in the Field (International Studies in Human Rights, 87)

A Handbook of International Human Rights Terminology, Second Edition (Human Rights in International Perspective)

Minority Groups and Judicial Discourse in International Law (International Studies in Human Rights)

Human Rights and Diversity: Area Studies Revisited (Human Rights in International Perspective)

Religion, Human Rights and International Law (Studies in Religion, Secular Beliefs and Human Rights)

Responding to Money Laundering: International Perspectives

Mental Disability and the European Convention on Human Rights (International Studies in Human Rights)

Texts and Materials on International Human Rights

Environment, Human Rights and International Trade

New Core International Human Rights Treaties, The

International Human Rights and Humanitarian Law

International Organizations, Constitutional Law, and Human Rights:

Responding to International Crime (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

The Security Council and the Protection of Human Rights (International Studies in Human Rights) (International Studies in Human Rights)

The Human Rights of Aliens under International and Comparative law (International Studies in Human Rights)

Human Rights in International Relations (Themes in International Relations)

Human Rights and International Relations

Guide To International Human Rights Practice

Human Rights in International Relations (Themes in International Relations)

Biotechnologies and International Human Rights

Human Rights in International Relations (Themes in International Relations)

Human Rights in International Relations (Themes in International Relations)

Human Rights in African Prisons (Research in International Studies)

The Right of the Child to Religious Freedom in International Law (International Studies in Human Rights)

International Human Rights Litigations in U.S. Courts

Trafficking of Human Beings from a Human Rights Perspective (International Studies in Human Rights)

Due Process and International Terrorism (Studies in Intercultural Human Rights)

International Human Rights, Decolonisation, Globalisation: Becoming Human (Routledge Studies in International Law, 3)

Human Rights in Turmoil: Facing Threats, Consolidating Achievements (International Studies in Human Rights)

Human Rights Protection in the Field (International Studies in Human Rights, 87)

A Handbook of International Human Rights Terminology, Second Edition (Human Rights in International Perspective)

Minority Groups and Judicial Discourse in International Law (International Studies in Human Rights)

Human Rights and Diversity: Area Studies Revisited (Human Rights in International Perspective)

Religion, Human Rights and International Law (Studies in Religion, Secular Beliefs and Human Rights)

Responding to Money Laundering: International Perspectives

Mental Disability and the European Convention on Human Rights (International Studies in Human Rights)

Texts and Materials on International Human Rights

Environment, Human Rights and International Trade

New Core International Human Rights Treaties, The

International Human Rights and Humanitarian Law

International Organizations, Constitutional Law, and Human Rights:

Recommend Documents