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Reconciling Extradition with Human Rights

Published online by Cambridge University Press:  27 February 2017

John Dugard  and
Christine Van den Wyngaert
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Extract

The human rights movement, which has had such a powerful impact on international law and relations in the post—World War II period, has in recent years turned its attention to extradition. Treaties, executive acts and judicial decisions on extradition have all been affected. At the same time, transnational and international crime has increased. The international community has responded by creating new institutions and expanding the network of bilateral and multilateral treaties designed to outlaw transnational crime, promote extradition, and authorize mutual assistance. Inevitably, there is a tension between the claim for the inclusion of human rights in the extradition process and the demand for more effective international cooperation in the suppression of crime, which resembles the tension in many national legal systems between the “law and order” and human rights approaches to criminal justice. As in domestic society, it is necessary to strike a balance between the two so as to establish a system in which crime is suppressed and human rights are respected. This was stressed by the European Court of Human Rights in the leading case on extradition and human rights, Soering v. United Kingdom, when it stated:

[I]nherent in the whole of the [European] Convention [on Human Rights] is 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 fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests 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.

Type
Research Article
Information
American Journal of International Law , Volume 92 , Issue 2 , April 1998 , pp. 187 - 212
Copyright
Copyright © American Society of International Law 1998

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References

1 For example, Europol. See Council Act on the Establishment of a European Police Office, 1995 O.J. (C 316) 1. For the text of the Europol Convention, July 26, 1995, see id. at 2, reprinted in International Criminal Law: A Collection of International and European Instruments 275 (Christine Van den, Wyngaert & Guy, Stessens eds., 1996)Google Scholar.

2 161 Eur. Ct. H.R. (ser. A) para. 89 (1989).

3 This principle was asserted in the United States in United States v. Noriega, 746 F.Supp. 1506, 1533 (S.D. Fla. 1990), in which a U.S. district court held that, “[a]s a general principle of international law, individuals have no standing to challenge violations of international treaties in the absence of protest by the sovereign involved.” In Prosecutor v. Tadić, No. IT–94–1–AR72, Appeal on Jurisdiction, para. 55 (Oct. 2, 1995), 35 ILM 32 (1996), the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia stated that comments of this kind

do not carry, in the field of international law, the weight which they bring to bear upon national judiciaries. Dating back to a period when sovereignty stood as a sacrosanct and unassailable attribute of statehood, recently this concept has suffered progressive erosion at the hands of the more liberal forces at work in the democratic societies, particularly in the field of human rights.

See also Albin, Eser, Common Goals and Different Ways in International Criminal Law. Reflections from a European Perspective, 31 Harv. Intl L.J. 117 (1990)Google Scholar.

4 For a discussion of these cases, see United States v. Puentes, 50 F.3d 1567, 1573–74 (11th Cir. 1995).

5 Id. at 1575.

6 See Sharon, A. Williams, Human Rights Safeguards and International Cooperation in Extradition: Striking the Balance , 3 Crim. L.F. 191, 222 (1992)Google Scholar.

7 United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir. 1997); In re Extradition of Howard, 996 F.2d 1320, 1330–31 (1st Cir. 1993).

8 Canada v. Schmidt, [1987] 1 S.C.R. 500, 524.

9 Belgium v. Postlethwaite, 1988 App. Cas. 924, 947 (H.L.); United States v. Bowe, [1990] 1 App. Cas. 500, 523 (P.C. 1989).

10 Argentina v. Mellino, [1987] 1 S.C.R. 536, 554–55. See also Canada v. Schmidt, [1987] 1 S.C.R. at 522–23.

11 910 F.2d 1063, 1067 (2d Cir. 1990), aff’g 726 F.Supp. 389 (E.D.N.Y. 1989). See further John, Quigley, The Rule of Non-Inquiry and the Impact of Human Rights on Extradition Law , 15 N.C. J. Int’l L. & Com. Reg. 401 (1991)Google Scholar; Jacques, Semmelman, Fédéral Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings , 76 Cornell L. Rev. 1198 (1991)Google Scholar; Andreas, F. Lowenfeld Ahmad Profile of an Extradition Case , 23 N.Y.U. J. Int’l L. & Pol. 723 (1991)Google Scholar. For a history of U.S. law on the subject, see Cherif Bassiouni, M., International Extradition 372, 633 (2d ed. 1987)Google Scholar.

12 536 F.2d 478, 484–85 (2d Cir. 1976). This view does not enjoy complete judicial support. In Gill v. Imundi, 747 F.Supp. 1028,1050 (S.D.N.Y. 1990) Judge Sweet stated that, although he was bound by the ruling in Ahmad v. Wigen, he did not share its confidence in the ability of the executive to take human rights considerations into account in reaching its decisions.

13 June 25, 1985, TIAS No. 12,050, as amended.

14 In re Requested Extradition of Smyth, 61 F.3d 711, 722 (9th Cir. 1995); In re Extradition of Howard, 996 F.2d 1320, 1331–33 (1st Cir. 1993). For a critical comment on these decisions, see Valerie Epps, Case note, 90 AJIL 296 (1996).

15 United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir. 1997); Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960).

16 Canada v. Schmidt, [1987] 1 S.C.R. 500, 522.

17 United States v. Allard, [1987] 1 S.C.R. 564, 572.

18 See, e.g., Regina v. Secretary of State for the Home Department, Ex parte Launder, [1997] 1 W.L.R. 839, 855 (H.L.); Royal Government of Greece v. Brixton Prison Governor, Ex parte Kotronis, [1969] 3 All E.R. 1337, 1339, 1341 (H.L.).

19 Ch. 33, §§11(3), 12(2)(a).

20 This provision was the basis for an English decision of 1996 refusing extradition to Hong Kong on the grounds that the human rights of the fugitive were likely to be violated after the return of Hong Kong to the People’s Republic of China in 1997. Regina v. Secretary of State for the Home Department, Ex parte Launder, Nos. CO. 2480/95, 0018/96 (Q.B. Div’l Ct. Aug. 6, 1996). The decision was overturned by the House of Lords. [1997] 1 W.L.R. 839. See further James, D. Wilets, Case note, 91 AJIL 733 (1997)Google Scholar.

21 Bert, Swart, Extradition , in International Criminal Law in The Netherlands 85, 95 (Bert, Swart & Andre, Klipeds., 1997)Google Scholar.

22 Decision of June 22, 1992, No. 2 BVR1901/1902 (Bundesverfassungsgericht), reprinted in Internationale Rechtshilfe in Strafsachen, Rechtsprechungssamlung 1949 BIS 1992, at 691 (Albin Eser, Otto Lagodny & Peter Wilkitzki eds., 2d ed. 1993).

23 G. v. Bundesamt für Polizeiwesen, No. B74382 (Schweizerisches Bundesgericht Mar. 18, 1994).

24 Magee v. O’Dea, [1994] 1 I.R. 500, 510–13 (H. Ct.); Finucane v. McMahon, [1990] 1 I.R. 165 (H. Ct. & S.C.); Shannon v. Ireland, [1984] I.R. 548, 565 (H. Ct. & S.C.).

25 34 Japanese Ann. Int’l L. 129, 143–44 (1991).

26 161 Eur. Ct. H.R. (ser. A) (1989).

27 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ. TS No. 5, 213 UNTS 221.

28 161 Eur. Ct. H.R. (ser. A) para. 91. On the question of state responsibility in this context, see Stephan, Trechsel, Grundrechtsschutz bei der intemationalen Zusammenarbeit in Strafsachen , 14 Europaische Grundrechte Zeitschrift 69 (1987)Google Scholar.

29 UN Doc. CCPR/C/49/D/469/1991 (1993), 98 ILR 479.

30 Dec. 16, 1966, 999 UNTS 171.

31 Dec. 13, 1957, Europ. TS No. 24, 359 UNTS 273.

32 Id., Art. 3(2).

33 July 28, 1951, Arts. 1, 33, 189 UNTS 150.

34 Supra note 13.

35 Dec. 17, 1979, Art. 9, TIAS No. 11, 081, 1316 UNTS 205.

36 Feb. 25,1981, Art. 4(5), 20 ILM 733 (1981), reprinted in 1 The Inter-American System: Treaties, Conventions & Other Documents, pt. 1, at 291 (F. V. García-Amador ed., 1983).

37 1990 Commonwealth L. Bull. 1036, Art. 10(2).

38 Opened for signature Dec. 10, 1984, 1465 UNTS 85.

39 Id., Art. 3(1).

40 GA Res. 45/116, annex, UN GAOR, 45th Sess., Supp. No. 49A, at 211, UN Doc. A/45/49 (1990), 30 ILM 1407 (1991). See further Bert, Swart, Refusal of Extradition and the United Nations Model Treaty on Extradition , 23 Neth. Y.B. Int’l L. 175 (1982)Google Scholar.

41 On the adoption of this Model Treaty, see Roger, S. Clark, The United Nations Crime Prevention and Criminal Justice Program: Formulation of Standards and Efforts at Their Implementation, chew. 8 (1994)Google Scholar.

42 Model Treaty on Extradition, supra note 40, Art. 3(b) and (e).

43 Id., Art. 3(e).

44 See Agreement for the Surrender of Fugitive Offenders, Dec. 20, 1996, Hong Kong-U.S., Art. 6(3) (c), 36 ILM 842 (1997).

45 Switzerland: Loi fédérale sur l’entraide intemationale en matière pénale, Mar. 20, 1981, RO 1982 846, amended Oct. 4, 1996; Austria: Gesetz über die Auslieferung und die Rechtshilfe in Strafsachen, Bundesgesetzblatt [BGB1.] 529/1979; Germany: Gesetz über die Internationale Rechtshilfe in Strafsachen, 12.12.1982 (BGB1. I S.1207).

46 Dharmarajah v. Ministère Publíc Fédéral, Arrêts du Tribunal Fédéral Suisse [ATF] 107 Ib 68 (1981). This case concerned an extradition request emanating from Sri Lanka, for the surrender of a person who had been condemned to death in his absence. The Court ordered extradition subject to the conditions that the fugitive would get a new trial, and that the death penalty would not be executed.

47 Although the Soering argument has featured prominently in Canadian extradition cases, it has met with little success. See Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

48 HR 30 Mar. 1990, NJ 249 (Swart, A. H. J.), excerpted and translated in 29 ILM 1375 (1990)Google Scholar, and in 22 Neth. Y.B. Int’l L. 432 (1991).

49 Finucane v. McMahon, [1990] 1 I.R. 165 (H. Ct. & S.C.).

50 Magee v. O’Dea, [1994] I.R. 500 (H. Ct.). In Heeralall v. Commissioner of Prisons, 1992 Mauritius Reports 70, 74, the Supreme Court of Mauritius refused to extradite a fugitive to France on the ground that French law would not afford him the due process of law guarantees contained in the Constitution of Mauritius.

51 Ahmad v. Wigen, 726 F.Supp. 389, 411 (E.D.N.Y. 1989). Canadian courts have also applied this test. See Canada v. Schmidt, [1987] 1 S.C.R. 500, 522 (per La Forest, J.). In Ross v. United States, [1994] 93 Can. Crim. Cas. (3d) 500, 538 (B.C. Ct. App.), Finch, J., said that it all comes down to the question whether the judges were “shocked” or “outraged” by the foreign system.

52 Aloni v. Ministers of Justice, 41(2) P.D. 42, 46, summarized in 23 Isr. L. Rev. 506 (1989).

53 United States v. Allard, [1987] 1 S.C.R. 564, 572 (Can.).

54 In re Croissant, Conseil d’Etat (Fr.),July 7, 1978, Gaz. Pal. 1979, 1, 34, 106 Journal du Droit International 90, 93 (1979).

55 S v. Williams, 1988 (4) SALR 49, 53 (W).

56 People’s Republic of China v. Qian Hong, Extradition No. 633–9 (Braz. Sup. Fed. Ct. Aug. 28, 1996) (on file with author).

57 United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir.), rev’g 957 F.Supp. 1280 (D. Mass.), stay of mandate denied, 117 S.Ct. 1491 (1997).

58 In Regina v. Secretary of State for the Home Department, Ex parte Launder, the fugitive, whose extradition to Hong Kong was sought on charges of corruption (involving the receipt of bribes), opposed extradition on the grounds that China imposed the death penalty for commercial crimes and that his human rights would be violated in respect of both trial and punishment after the return of Hong Kong to China in 1997. Expert witnesses testified on his behalf about the inadequate protection afforded to human rights in the Chinese criminal justice system. The Queen’s Bench Divisional Court accepted this argument and held that it would be “unjust or oppressive,” within the meaning of §§11 (3) and 12(2) of the English Extradition Act of 1989. This decision, however, was set aside on appeal by the House of Lords. [1997] 1 W.L.R. 839.

59 In The Netherlands v. Short, Advocaat-General Strikwerda expressed the opinion that the principle of lex posterior derogat legi priori was not applicable where the incompatible treaties were between different states. See 29 ILM 1375, 1385 (1990). In this case there was a conflict between the NATO Status of Forces Agreement of 1951, to which both the United States and the Netherlands were parties, and the Sixth Protocol to the European Convention on Human Rights of 1985, to which the Netherlands, but not the United States, was a party. See note 48 supra and corresponding text.

60 June 8, 1972, 28 UST 227, 1049 UNTS 167.

61 Supra note 27.

62 See Theodor, Meron, On a Hierarchy of International Human Rights , 80 AJIL 1 (1986)Google Scholar. But see Prosper, Weil, Towards Relative Normativity in International Law? 77 AJIL 413, 421 (1983)Google Scholar.

63 In P. v. Office Fédéral de la Police, the Swiss Fédéral Tribunal held:

According to the conceptions that prevail in Switzerland, the general principles of the law of nations are directly applicable in domestic law; if they have the nature of ordre public principles (jus cogens), they have priority over norms of positive conventional law whose application in concreto would be contrary to these principles.

ATT 117 Ib 337, 340 (1991) (translated by authors). See also The Netherlands v. Short, 29 ILM at 1384–86 (Advocaat-General Strikwerda).

64 Short, 29 ILM 1375, 22 Neth. Y.B. Int’l L. 432 (1991).

65 161 Eur. Ct. H.R. (ser. A) para. III (1989).

66 Ng v. Canada, 98 ILR 479, para. 16.4.

67 See Principles and Procedures for a New Transnational Criminal Law 489–710 (Albin, Eser & Otto, Lagodny eds., 1992)Google Scholar; Michael, P. Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases after Soering , 17 Yale J. Int’l L. 85 (1992)Google Scholar; Quigley, supra note 11; Richard, B. Lillich, The Soering Case , 85 AJIL 128 (1991)Google Scholar; Christine Van den, Wyngaert, Applying the European Convention on Human Rights to Extradition: Opening Pandora’s Box? 39 Int’l & Comp. L.Q. 757 (1990)Google Scholar; Roger, Errera, Extradition et droits de l’homme , 6 Collected Courses of the Academy of European Law (1995), bk. 2, at 245 (1997)Google Scholar.

68 In 1983 the Institute of International Law adopted a resolution, New Problems of Extradition, following a report prepared by Karl Doehring, which included a paragraph on extradition and human rights. See 60 Y.B. Instm. Int’l L. 211, 306 (1983 II).

69 The International Law Association (ILA) has approved two reports initiated by the present authors and adopted two resolutions on this subject. See 66 ILA, Conference Report 4, 142–70 (1994); 67 id. at 15, 214–46 (1996).

70 The International Association of Penal Law first drew attention to the link between extradition and human rights in its Rome conference of 1969. See 41 Revue Internationale de Droit Pénal 12, 15 (1970). Later it adopted a comprehensive resolution on the subject at its conference in Rio de Janeiro in 1994. See 66 id. at 67, 69 (1995). See also the national reports prepared for this conference in 65 id. at 11–616 (1994).

71 Restatement (Third) of the Foreign Relations Law of the United States §476 comment h (1987).

72 60 Y.B. Inst. Int’l L., supra note 68, at 306.

73 Id. at 223 (Oda), 229 (McWhinney), 230 (McDougal), 234 (Mosler). For an examination of this debate, see Meron, supra note 62, at 17–18.

74 In Sv. Makwanyane, 1995 (3) SALR 391, 414 (CC), the Constitutional Court of South Africa held that the death penalty was not prohibited by international law.

75 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, Dec. 15, 1989, GA Res. 44/128, annex, UN GAOR, 44th Sess., Supp. No. 49, at 206, UN Doc. A/44/49 (1989), 29 ILM 1464 (1990).

76 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, opened for signature Apr. 28, 1983, Europ. TS No. 114, 22 ILM 538 (1983).

77 Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, OASTS No. 73, 29 ILM 1447 (1990).

78 See generally William, A. Schabas, The Abolition of the Death Penalty in International Law (1993)Google Scholar.

79 161 Eur. Ct. H.R. (ser. A) (1989).

80 UN Doc. CCPR/C/48/D/470/1991 (1993), 98 ILR 426, para. 14.2.

81 29 ILM at 1385–87 (Advocaat-General), 1389 (Court).

82 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 799.

83 98 ILR 426, para. 14.6.

84 Venezia v. Ministero di Grazia e Giustizia, Corte cost., 27 June 1996, n.223, 79 Rtvistadi Diritto Internazionale 815 (1996). See further Andrea Bianchi, Case note, 91 AJIL 727 (1997).

85 98 ILR 479. See the discussion of the “death row phenomenon” below.

86 Supra note 38.

87 Dec. 9, 1985, OASTS No. 67, 25 ILM 519 (1986).

88 Nov. 26, 1987, Council of Europe Doc. H (87) 4, 27 ILM 1152 (1988).

89 630 F.2d 876, 880 (2d Cir. 1980).

90 Supra note 38, Art. 3(1).

91 Supra note 40, Art. 3(f).’

92 161 Eur. Ct. H.R. (ser. A) para. 111 (1989) (emphasis added).

93 Triveniben v. State of Gujurat, [1989] 1 S.C.J. 383; Madhu Mehtu v. Union of India, [1989] 3 S.C.R 775; Vatheeswaran v. State of Tamil Nadu, [1983] 2 S.C.R. 348; Sher Singh v. State of Punjab, [1983] 2 S.C.R. 582, 593.

94 Catholic Commission for Justice & Peace, Zimbabwe v. Attorney-General Zimbabwe, 1993 (4) SALR 239 (Sup. Ct).

95 Pratt v. Attorney-General for Jamaica, [1993] 3 W.L.R. 995 (P.C.), 98 ILR 335.

96 98 ILR 426, para. 15.2 (quoting its views in Martin v. Jamaica, No. 317/1988, para. 12.2 (1993)).

97 Richmond v. Lewis, 948 F.2d 1473 (1991).

98 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

99 The United States has made a reservation to both these treaties that binds it to the obligation to prevent cruel, inhuman or degrading treatment or punishment only insofar as the term “means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” See UN Docs. CCPR/C/2/Rev.4 (1994) and CAT/C/2/Rev.4 (1996); Contemporary Practice of the United States, 85 AJIL 335, 336 (1991) and 89 AJIL 109, 110 (1995).

100 Lillich, supra note 67, at 145, argues that the Soering decision was based largely on the facts of the particular case, whereas Shea, supra note 67, at 110, rejects this narrow interpretation and maintains that the Court’s decision was not determined by Soering’s personal circumstances.

101 In the Kindler case, [1991] 2 S.C.R. 779, 785, La Forest, J., confined Soering to the personal circumstances of the accused, whereas Cory, J., held that “on my reading of the decision neither his youth nor his country of origin were either crucial to or determinative of the result,” id. at 823. Gubbay, C. J., sides with Cory, J., in Catholic Commission for Justice & Peace, Zimbabwe v. Attorney-General Zimbabwe, 1993 Google Scholar (4) SALR 239, 263, 270 (Sup. Ct.).

102 Kindler v. Canada, 98 ILR 426, paras. 6.4, 15.2.

103 Richard, B. Lillich, Towards the Harmonization of International Human Rights Law , in Recht Zwischen Umbruch und Bewahrung: Festschrift Für Rudolf Bernhardt 453, 472 (Ulrich, Beyerlin et al. eds., 1995)Google Scholar.

104 Catholic Commission for Justice & Peace, Zimbabwe, 1993 (4) SALR 239 (Sup. Ct.).

105 B Pratt v. Attorney-General for Jamaica, [1993] 3 W.L.R. 995 (P.C.), 98 ILR 335.

106 98 ILR 479.

107 Id., para. 16.2 (quoting its General Comment 20 [44]).

108 Ng v. Canada, Individual Opinion of Messrs. Mavrommatis and Sadi, 98 ILR at 505.

109 These rules were adopted in 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders and were subsequently endorsed by the Economic and Social Council in Resolution 663 C (XXTV) of July 31, 1957, UN ESCOR, 24th Sess., Supp. No. 1, at 11, UN Doc. E/3048 (1957).

110 Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) (1978). See also Costello-Roberts v. United Kingdom, 247-C Eur. Ct. H.R. (ser. A) (1993) (violation not of Article 3 but of Article 8, right to privacy).

111 Zimbabwe: S v. A Juvenile, 1990 (4) SALR 151 (Sup. Ct.); S v. Ncube, 1988 (2) SALR 702 (Sup. Ct). Namibia: Ex parte Attorney-General Namibia, in re Corporal Punishment by Organs of State, 1991 (3) SALR 76 (S. Ct.). South Africa: S v. Williams, 1995 (3) SALR 632 (CC).

112 Dirk van Zyl Smit, Taking Life Imprisonment Seriously, in The Quest for Justice. Essays in Honour of Michael Mcgregor Corbett, Chief Justice of South Africa 309 (Ellison Kahn ed., 1995).

113 Supra note 36. But see S. I. G. v. Public Prosecutor, 17 Neth. Y.B. Int’l L. 280 (1986).

114 In a trio of decisions, the Canadian Supreme Court has dismissed the argument that persons should not be extradited to the United States for drug offenses on account of the long mandatory prison sentences that must be imposed on convicted drug offenders there. Ross v. United States, [1996] 104 Can. Crim. Cas. (3d) 446, aff’g [1994] 93 Can. Crim. Cas. (3d) 500 (B.C. Ct. App.); Whidey v. United States, [1996] 104 Can. Crim. Cas. (3d) 447, aff’g [1994] 20 O.R.3d 794 (Ct. App.); United States v. Jamieson, [1996] 104 Can. Crim. Cas. (3d) 575, rev’g [1994] 93 Can. Crim. Cas. (3d) 265 (Qué. (A)).

115 App. No. 11615/85 (unreported), declared inadmissible on October 10, 1985. Geller’s extradition from the Netherlands was requested by the United States. He was charged with several counts of indecent assault against minors, for which he risked prison sentences of up to 50 years. See S. I. G. v. Public Prosecutor, 17 Neth. Y.B. Int’l L. 280 (1986).

116 See Lareau v. Manson, 507 F.Supp 1177 (D. Conn. 1980); Sterling v. Cupp, 625 P.2d 123 (Or. 1981). See also UN Standard Minimum Rules for the Treatment of Prisoners, supra note 109, Art. 9.

117 25 Eur. Ct. H.R. (ser. A) (1978), 58 ILR 190. See also Tomasi v. France, 241 Eur. Ct. H.R. (ser. A) (1992).

118 The extradition of Moreno and Garcia was requested by Spain on June 30, 1990, for the offense of membership in an armed band, associated with the crime of illegal assembly. On July 2,1993, the Court of First Instance in Brussels decided that the Spanish arrest warrant could be enforced. This decision was confirmed by the Court of Appeal on July 16, 1993. On July 23, 1993, the same Court of Appeal, sitting as an administrative court advising the Minister of Justice on the admissibility of the extradition request, gave a negative opinion: it held that the offenses charged against the couple were political offenses, and that the crimes were not serious enough to make them fall under the European Convention on the Suppression of Terrorism, opened for signature Jan. 27, 1977, Arts. 1, 13, Europ. TS No. 90. In January 1996, the Minister of Justice decided to grant extradition, despite the negative advice of the court, on the ground that the charges against Moreno and Garcia were sufficiently serious to make them eligible for extradition under the latter Convention. Moreno and Garcia lodged an administrative appeal against this decision before the Conseil d’Etat, which, on February 5, 1996, decided that the decision of the Minister was not properly motivated and ordered the suspension of the extradition decree. Meanwhile, on October 29, 1993, Moreno and Garcia’s request to be recognized as political refugees had been declared admissible but was rejected on February 16, 1994, by the Belgian Commissioner-General for Refugees, a decision that was confirmed on January 12, 1996, by the Commission of Appeal. See Gert, Vermeulen & Tom Van der, Beken, Uitlevering Basken aan Spanje: Juridische Bedenkingen bij een Politieke Zaak , 9 Recente Arresten van de Raad van State 221 (1995)Google Scholar.

119 HR 15 Oct. & 17 Dec. 1996, 22 Nederlands Juristen Comité voor de Mensenrechten 143 (1997).

120 Convention on Extradition, supra note 31, Art. 3(2).

121 Supra note 40, Art. 3 (b).

122 See supra notes 21–24 and corresponding text.

123 In 1961 South Africa was compelled to withdraw from the Commonwealth because of its racial policies. This resulted in the termination of extradition arrangements with Commonwealth countries, including the United Kingdom. Between 1961 and 1990, South Africa was able to enter into extradition agreements with only four states. Moreover, some non-Commonwealth states terminated their extradition agreements with South Africa during this period. See John Dugard, International Law. A South African Perspective 130–31 (1994).

124 In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993).

125 In re Requested Extradition of Smyth, 61 F.3d 711 (9th Cir. 1995).

126 Barberà, Messegué & Jabardo v. Spain, 146 Eur. Ct. H.R. (ser. A) (1988).

127 Kostovski v. The Netherlands, 166 Eur. Ct. H.R. (ser. A) (1989).

128 161 Eur. Ct. H.R. (ser. A) para. 113 (1989) (emphasis added). In casu the Court held that the absence of legal aid in Virginia to fund collateral challenges against a death sentence did not qualify as such a “flagrant denial.”

129 Model Treaty on Extradition, supra note 40, Art. 3(f).

130 See, e.g., Second Additional Protocol to the European Convention on Extradition, opened for signature Mar. 17, 1978, Art. 3, Europ. TS No. 98; Model Treaty on Extradition, supra note 40, Art. 3(g).

131 See, e.g., P. v. Office Fédéral de la Police, ATF 117 Ib 337 (1991); and Dharmarajah v. Ministère Public Fédéral, ATF 107 Ib 68 (1981).

132 Drozd andjanousek were convicted and sentenced to 14 years in prison for armed burglary by a court in Andorra (at the time when it was not yet a sovereign state). The sentence was pronounced by the Tribunal des corts, a court composed of three judges, one appointed by the French President, one by the Episcopal co-prince and one by the Bishop of Urgel. As Andorra had no prison facilities, sentences were enforced in either France or Spain. Both convicts chose to serve their sentences in France. When in France they complained that the sentence could not be enforced because it had been pronounced by a court that did not qualify as a proper court of law under Article 6 of the European Convention on Human Rights. By a majority of one vote, the European Court of Human Rights decided that there had been no violation.

133 240 Eur. Ct. H.R. (ser. A) para. 110 (1992) (emphasis added) (citation omitted).

134 See generally Criminal Procedure Systems in the European Community (Christine Van den, Wyngaert ed., 1993)Google Scholar.

135 See International Covenant on Civil and Political Rights, supra note 30, Art. 17; and European Convention on Human Rights, supra note 27, Art. 8(2).

136 Aylor-Davis v. France, App. No. 22742/93, 76-A Eur. Comm’n H.R. Dec. & Rep. 164 (1993), 100 ILR 665. Most of the applications on this subject relate to expulsion, not extradition. See, e.g., Nasri v. France, 322-B Eur. Ct. H.R. (ser. A) (1995); Beldjoudi v. France, 234-A Eur. Ct. H.R. (ser. A) (1992).

137 X v. Bundesamt für Polizeiwesen, ATF 117 Ib 210 (1991).

138 International Covenant on Civil and Political Rights, supra note 30, Art. 2; European Convention on Human Rights, supra note 27, Art. 1; American Convention on Human Rights, Nov. 22, 1969, Art. 1, oasts No. 36, reprinted in 1 The Inter-American System, supra note 36, at 52; African Charter on Human and Peoples’ Rights, June 1981, Art. 1, 21 ILM 59 (1982).

139 See X & Yv. The Netherlands, 91 Eur. Ct. H.R. (ser. A) (1985). Here it is necessary to recall the decisions of the Inter-American Commission on Human Rights holding that amnesty laws adopted by Uruguay and Argentina violated the American Convention on Human Rights because they failed to take account of the right of victims to have human rights violators prosecuted and punished. Inter-Am. C.H.R. Report No. 29/92, OEA/Ser.L/V/11.82, doc. 25 (1992) (Uruguay); Inter-Am. C.H.R, Report No. 28/92, OEA/Ser.L/V/11.82, doc. 24 (1992) (Argentina), reprinted in 3 Transitional Justice 533, 605 (Neil J. Kritz ed., 1995).

140 161 Eur. Ct. H.R. (ser. A) para. 86 (1989).

141 As most extradition treaties include a speciality clause, it is usually considered unnecessary to subject the surrender of an extraditee to an express reminder to the requesting state of this obligation. Sometimes this is done, however. For example, when the United States extradited the former President of Venezuela, Marcos Perez Jimenez, to Venezuela, the Secretary of State made it clear in a note accompanying the extradition order that the extradition was conditional on his being tried only for specified financial crimes and not for murder, for which Venezuela had also requested his extradition. See Conditions Attached to Surrender, 6 Whiteman DIGEST §39, at 1051.

142 R. v. Parisien, [1988] 1 S.C.R. 950 (Can.), 92 ILR 683, 686.

143 See Aylor-Davis v. France, App. No. 22742/93, 76 Eur. Comm’n H.R. Dec. & Rep. (1993), 100 ILR 665. In the Venezia case, an Italian Court suggested that such executive assurances were not satisfactory as they could not bind the judiciary. It consequently refused extradition. Corte cost., 27 June 1996, n.223, 79 Rtvista di Dirit to Internazionale 815 (1996).

144 See General Assembly Resolution and Notes Verbale on the Extradition of Mr. Eain, 22 ILM 442 (1982).

145 See Canada, Department of Justice, Press Release, Minister of Justice Orders Release of Dennis Hurley to Mexico (Feb. 27, 1996).

146 See Canada, Department of Justice, Press Release, Minister of Justice Orders the Surrender of Rodolfo Pacificador to the Republic of the Philippines (Oct. 23, 1996).

147 G v. Bundesamt für Polizeiwesen, No. B74382 (Schweizerisches Bundesgericht Mar. 18, 1994). See also P. v. Office Fédéral de la Police, ATF 117 Ib 337 (1991); Dharmarajah v. Ministere Public Fédéral, ATF 107 Ib 68 (1981).

148 Dharmarajah, ATF 107 Ib 68.

149 Dharmarajah was decided before the Swiss extradition statute of 1981, supra note 45, entered into force. This statute explicitly provides in Article 2(a) that international cooperation shall be refused if the proceedings in the requesting state are not in conformity with the principles or procedures laid down in the European Convention on Human Rights or in Article 14 of the International Covenant on Civil and Political Rights.

150 Shea, supra note 67, at 136–37.

151 See Resolution on the fourth question, Art. 111(4), reprinted in Revue Internationale de Droit Pénal, No. 2, 1978, at 645. For the final text, see Actes du Xlle Congrès de l’Association Internationale de Droit Pénal, reprinted in 50 id. at 244 (1980). See further Christine Van den, Wyngaert, The Political Offence Exception to Extradition 85 (1981)Google Scholar.

152 13 Int’l Enforcement L. Rep. 146, 149 (1997); Independent (London), Dec. 29, 1995, at 9.

153 Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, Arts. 4, 7, 22 UST 1641, 860 UNTS 105; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, Arts. 4, 7, 24 UST 564, 10 ILM 1151 (1971).

154 International Convention against the Taking of Hostages, supra note 35.

155 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, Dec. 14, 1973, Arts. 3, 7, 28 UST 1975, 1035 UNTS 167.

156 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, supra note 38.

157 See generally Cherif Bassiouni, M. & Edward, M. Wise, Aut Dedere aut Judicare: The Dutyto Extradite or Prosecute in International Law (1995)Google Scholar.

158 In fact, the obligation is weaker than the term aut dedere aut judicare suggests, as a contracting party is only required to extradite or “submit the case to its competent authorities for the purpose of prosecution.” These authorities are required to consider the question of prosecution in good faith but are not obliged to prosecute.

159 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Mar. 10, 1988, Art. 6, 27 ILM 668, 676 (1988).

160 Some common law countries, for example, have recently enacted legislation to allow prosecution of their nationals for organizing sex tourism abroad. See Part 111 A (“Child Sex Tourism”) of the Australian Crimes Act of 1914, as amended.

161 See the Institute’s resolution, supra note 68, at 306.

162 See Meron, supra note 62, at 22.

163 ATF 117 Ib 210 (1991). See also R. v. Secretary of State for the Home Department, Ex parte Hill, [1997] 2 All E.R. 638, 664 (Q.B. Div’l Ct.) (rejecting argument that fugitive should not be extradited because his wife was ill and his extradition would have a harmful effect on her health). According to Hooper, J., the seriousness of the offense outweighed such personal considerations.

164 23 Eur. Hum. Rts. Rep. 413, 457, paras. 79–82 (1997).

165 Id.

166 See supra notes 92–105 and corresponding text.

167 See, e.g., European Convention on Human Rights, supra note 27, Art. 15, and International Covenant on Civil and Political Rights, supra note 30, Art. 4.

168 Const. §35(5), reprinted in 36 ILM 744 (1997). See also Canadian Charter of Rights and Freedoms, Art. 24(2), Constitution Act, 1982 (UK), ch. 11, sched. B., 1985 R.S.C., App. II, No. 44.

169 161 Eur. Ct. H.R. (ser. A) (1989).

170 240 Eur. Ct. H.R. (ser. A) (1992).

171 Pieter van, Dijk & van Hoof, G.J. H., Theory and Practice of the European Convention on Human Rights 171–85 (2d ed. 1990)Google Scholar.

172 This formulation is drawn from Soering, 161 Eur. Ct. H.R. (ser. A) para. 91, where the European Court of Human Rights held that the United Kingdom was required not to extradite “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 state.” The “real risk” test was followed by the UN Human Rights Committee in Kindler, 98 ILR 426, para. 13.2, and Ng, id. at 479, paras. 14.1 and 15.1. In Ng the Committee defined “real risk” as “a necessary and foreseeable consequence,” para. 15.1. In Ahmad v. Wigen, the district court required the accused to “demonstrate probable exposure to such treatment as would violate universally accepted principles of human rights.” 726 F.Supp. 389, 410 (E.D.N.Y. 1989). On refusal, see also note 71 supra and corresponding text.