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The Extradition of Nationals: Comments on the Extradition Request for Alberto Fujimori

Published online by Cambridge University Press:  06 March 2019

Arnd Düker

Extract

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On 31 July 2003 Peru submitted an extradition request to the Japanese authorities requesting the extradition of former President Alberto Fujimori. Along with the establishment of a truth and reconciliation commission, and the numerous penal proceedings against the former presidential councilor and head of the secret service Vladimiro Montesinos Torres, the extradition request is another important effort of the Peruvian government to bring human rights violators to justice. Since Peru's legal system does not allow trials in absentia, Fujimori will escape prosecution if he is not extradited or tried in Japan.

Type
European & International Law
Information
German Law Journal , Volume 4 , Issue 11 , 01 November 2003 , pp. 1165 - 1177
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 Alberto Fujimori was President of the Republic of Peru between 1990 and 2000. During his two terms in office, Peru's security forces committed grave human rights violations. See Amnesty International, AMR 46/017/2001, 26 October 2001.Google Scholar

2 . The Commission of Truth and Reconciliation was formed by former president Paniagua in June 2001 after Fujimori fled to Japan. Its mandate was to provide an official record of human rights violations and violations of international humanitarian law committed in Peru between May 1980 and November 2000, and to recommend measures to strengthen human rights and democracy. It presented a final report of its findings on 28 August 2003. The commission has held numerous public hearings, collected over 17,000 testimonies, and has developed a unified register of “disappeared” persons. It reported that previous estimates of abuses committed by the terrorist group Shining Path were far too low. The 12-member commission has identified by name some 32,000 people who died during the violence. It also documented grave human rights violations, including disappearances, extrajudicial executions, and torture, committed by official security forces during the three successive governments of presidents Fernando Belaúnde, Alan García, and Alberto Fujimori.Google Scholar

3 Montesinos also fled the country but was arrested in June 2001 in Venezuela and returned to Peru where he was convicted of charges related to human rights violations, corruption and money laundering. He still faces more than 50 trials.Google Scholar

4 The Supreme Court of Spain held that Peru was in the process of initiating criminal investigations over claims of genocide, terrorism, torture and illegal detention alleged to have been committed by Peruvian ex-Presidents Alan García, Alberto Fujimori and other government and military officials from 1986 to the present. Therefore, the Supreme Court held that “for the present time” there was no need for the Spanish courts to intervene on the basis of universal jurisdiction. See ASIL insights, 8 August 2003 http://www.asil.org/ilib/ilib0614.htm. The decision Judgment on the Peruvian Genocide Case, Judgment No. 712/2003 of 20 May 2003 is obtainable in Spanish at www.derechos.org/nizkor/peru/doc/tsperu.html.Google Scholar

5 Former president Alan Garcia was charged with political corruption and theft after he fled to Colombia and France where he remained in exile. In 2001 he returned and he was allowed to run for president. Peru's Supreme Court ruled that the crimes came under a statue of limitations.Google Scholar

6 Mainichi Shimbun, Japan, 31 July 2003.Google Scholar

7 See, Press conference Ministry of foreign affairs of Japan, 27 March 2003, http://www.mofa.go.jp/announce/press/2003/3/0327.Google Scholar

8 This isn't very surprising since the international warrant is valid in all of these countries and the problem of the Japanese nationality wouldn't arise.Google Scholar

9 Fujimori refused to allow Colina members to testify before a congressional committee investigating the crimes and ensured that a military court retained jurisdiction over the case. In 1995 Congress approved a comprehensive amnesty. Those in detention at that time were immediately released, and the charges against them were dropped. On 14 March 2001, the Inter-American Court of Human Rights decided that these are self-amnesty laws, incompatible with the American Covenant on Human Rights, and as a consequence lacking legal effects. The same court asserted the erga omnes effect in the subsequent interpretative ruling of the sentence. See, Judgment of March 14, 2001, Inter–Am. Ct. H.R., (Ser. C) No. 75 (2001).Google Scholar

10 See, the unofficial English translation of the Diplomatic Note requesting the extradition of former President Alberto Fujimori, obtainable at www.rree.gob.pe/domino/nsf/Enlaces.nsf/0/f69d524efaaf7e1205256d7900782199?OpenDocument.Google Scholar

11 Some Peruvians support the rumour that he may have actually been born in Japan. This seems unlikely, as Peru did not allow Japanese immigration after 1936 until the 1950s.Google Scholar

12 The Japanese Government runs a website with the full text of all law, see http://law.e-gov.go.jp/cqi-bin/idxsearch.cgi. Unfortunately, there is no text of the Japanese extradition law in English. The author is thankful to Mr. Hideki Yamaguchi, lecturer in Japanese sciences, University of Frankfurt, for translation. A comprehensive collection of English translations of Japanese laws is EHS Law Bulletin Series, Japan (EHS).Google Scholar

13 See, the discussion at www.fujimoriextraditable.com.pe/english/nationalidad/html Google Scholar

14 Japan's most recent nationality law is Law No. 147 (1950) as amended by Law No. 268 (1952), Law No. 45 (1984) and Law No. 89 (1993). According to these laws, a person of dual nationality shall be obliged to choose between the two nationalities. However, the Ministry of Justice points out that it may validly declare the loss of nationality, even if no declaration of choice exists, in the following cases: (1) If a Japanese national has not lost his/her foreign nationality: (2) If a Japanese national has taken up public office in the foreign country, which would contradict the choice of nationality.Google Scholar

15 Extradition law (tôbô hanzainin hikiwatashi hô), subsequent amended by Law No. 163 (1954), Law No. 86 (1964), Law No. 70 (1978) and Law No. 89 (1993), see http://law.e-gov.go.jp/cgi-bin/idxsearch.cgi. Extradition on the basis of national legislation without treaty essentially imposes a condition of reciprocity. It seems that the other conditions listed in Art.2 are fulfilled. This would lead to reciprocity.Google Scholar

16 Art. 2 No. 9.Google Scholar

17 See, http://www.uncjin.org/Laws/extradit/japan.pdf.Google Scholar

18 Rome Statute of the International Criminal Court, 17 July 1998, 37 ILM 999 (1998).Google Scholar

19 The principle of effective nationality is often used to settle conflicts arising out of dual nationality. Multiple nationality can lead to difficulties when it comes to exercising diplomatic protection. In principle diplomatic protection cannot be invoked against a State of which the injured party is also a national, since the person in question is also considered by that State to be its citizen. Furthermore, the rights of citizens with dual nationality can only be defended with regard to third countries if the nationality were predominant. The State against which the claim is being made must be able to rely upon the validity of the nationality claimed by the individual. Therefore the nationality must be effective. This will not be so if naturalisation has been granted in the absence of any link with the applicant State or in the absence of any objective circumstances. The principle of effective nationality is not only used to solve conflicts concerning diplomatic protection. For example, in Germany, it is used to solve civil conflicts if a person has double nationality. If the person possesses the German nationality, German law applies, Art. 5 (1) EGBGB.Google Scholar

20 ICJ Rep. 1955, 4.Google Scholar

21 ICJ Rep. 1955, 23. Liechtenstein conferred nationality to Nottebohm without any genuine connection. The ICJ concluded that in cases of conferred nationality “it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national”.Google Scholar

22 According to the Peruvian minister of foreign affairs, Allan Wagner, Peru is considering to bring the dispute to the ICC (AFP, 1 August 2003). However, this case wouldn't be admissible since jurisdiction of the ICC exists only for crimes committed after 1 July 2002.Google Scholar

23 See, Rinio, Carsten, Die Auslieferung eigener Staatsangehöriger, ZStW 1996, pp. 354–393 for an analysis of the situation in Germany, Austria, France, Netherlands, Switzerland, USA, Canada, Great Britain.Google Scholar

24 See, Bassiouni, M. Cherif /Wise, Edward M.: Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dordrecht/Boston/London, 1995.Google Scholar

25 See, Amnesty International IOR 53/008/2001. The Anglo-American legal system does not distinguish the aut dedere aut iudicare rule with the related principle of universality, see Rüdiger Wolfrum, The Decentralised Prosecution of International Offences through National Courts, in Yoram Dinstein/ Mala Tabory, War Crimes in International Law, The Hague, Boston, London, 1997, p.235. The principle of universality itself is controversial in the Anglo-American legal system, see Ruth Wedgwood, National Courts and the Prosecution of War Crimes, in Gabrielle Kirk McDonald/ Olivia Swaak-Goldman, Substantive and Procedural Aspects of International Criminal Law. The Experience of International and National Courts, Volume I, Den Haag, London, Boston, 2000, pp. 399.Google Scholar

26 See, the judgment of the International Criminal Tribunal for the former Yugoslavia Prosecutor v. Erdemovic, Case No. IT-96-22-T (29 November 1996), para 28: Crimes against humanity “are serious acts of violence which harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health, and or dignity. They are inhumane acts that by their very extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment. It is therefore the concept of humanity as victim which essentially characterises crimes against humanity.”Google Scholar

27 According to Art. 7 of the ICC-Statute, crimes against humanity are not linked to an armed conflict. They include the following acts when committed on a widespread or systematic basis: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape and other crimes of sexual violence; persecution; enforced disappearance; the crime of apartheid and other inhumane acts.Google Scholar

28 See, inter alia Ian Brownlie, Principles of Public International Law, Oxford, 5th ed. 1998, p.515. The International Law Commission has incorporated the principle of aut dedere aut judicare in Article 9 of the 1996 Draft Code of Crimes. But it noted that the duty either to prosecute or extradite would depend on the sufficiency of the evidence. See Report of the International Law Commission on the Work of its Forty-Eighth Session, 51 U.N. G.A.O.R. Supp. (N.10) at 9, U.N. Doc. A/51/10 (1996), paras 4-5.Google Scholar

29 Amnesty International, AMR 46/016/2003, 31 July 2003.Google Scholar

30 See, the country-by-country review in Amnesty International, IOR 53/003/2001-IOR 53/017/2001: Universal jurisdiction. The duty of states to enact and enforce legislation, 1 September 2001.Google Scholar

31 From 1976 to 1983 approximately 30.000 people disappeared. Hundreds of them possessed a nationality of a European country. Germany is requesting the extradition of two generals suspected of having killed the student Elisabeth Käsemann in 1977. One suspect has been detained but the Argentinean government has until now refused to allow extradition.Google Scholar

32 In Argentina international human rights treaties have the legal ranking as constitutional provisions, see Helen Duffy/Jonathan Huston, Implementation of the ICC Statute: International Obligations and Constitutional Considerations, p.34 in: Claus Kreß/ Flavia Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, vol. I, 2000. Argentina enacted in Art. 5 of the extradition law of 1885 an aut dedere aut judicare obligation with regard to foreigners found in its territory suspected of committing ordinary crimes abroad. Argentines though, could not be extradited to a foreign country under any circumstances. In 1997 Law No. 24767 was introduced and the general obligation aut dedere aut iudicare of former Art. 5 is no longer found. But the government stated in 1997 that “Argentina applies the principle aut dedere aut punire, as laid down in the international agreements that are binding on it. In cases where no agreement exists, the principle applies to nationals, and also in respect of acts having consequences within its territory”. See Amnesty International, IOR 53/007/2001.Google Scholar

33 Ley de punto final, No. 23.49l ratified December 23, 1986 and Ley de obediencia debida, No.23.521, ratified June 4, 1987.Google Scholar

34 The Guardian, Saturday 30 August 2003.Google Scholar

35 After UNMIK waived immunity, an international judge opened process in absentia, see http://www.unmikonline.org/press/2003/wire/Jul/imm020703PM.htm.Google Scholar

36 Adopted by the UN General Assembly on 10 December 1984 and enforced 26 June 1987, U.N. G.A. Res. 39/46, U.N. G.A.O.R. Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984).Google Scholar

37 Japan ratified this agreement on 29 June 1999. Japan is also signatory to the Anti-Corruption Convention of the Organization for Economic Cooperation and Development (OECD), which was enforced 15 February 1999. Interestingly, Transparency International argued in favour of an extradition based on allegations of corruption, see Press Release 27 August 2003: Transparency International calls on Japanese government to extradite Fujimori, http://www.transparency.org/pressreleases_archive/2003/2003.08.27.fujimori.html.Google Scholar

38 Every state that is a party to the Convention against Torture is obliged under article 7(1) of the Convention, to extradite anyone found in its jurisdiction alleged to have committed torture or to submit the case to its competent authorities for the purpose of prosecution.Google Scholar

39 See, No. 4 and 23 of the Diplomatic Note requesting the extradition of former President Alberto Fujimori.Google Scholar

40 The death squad killed 15 people and left 4 seriously wounded. One victim remains now permanent handicapped. The Inter-American Court of Human Rights ruled that the actions violated the right of personal integrity. See judgement of 14.3.2001 No. 2 para. b.Google Scholar

41 Kai Ambos, Straflosigkeit von Menschenrechtsverletzungen, Freiburg i. Br., 1997, p.172. Antonio Marchesi, L'attuazione in Italia degli obblighi internazionali di repressione della tortura, RDI 1999, p.468, has stated that the CAT does not provide a sufficient basis for a prosecution in Italy of a person suspected of torture since it does not itself define the crime of torture or the appropriate penalties.Google Scholar

42 Art.3 of the Japanese Penal Codes provides jurisdiction for crimes committed by Japanese nationals abroad. Furthermore, article 4-2 (Crimes committed outside Japanese territory to be governed by treaty) of the Japanese Penal Code provides universal jurisdiction over certain crimes made illegal under Japanese law committed by anyone outside Japan when a treaty requires that they be punished even if committed outside Japan. Art.4-2 states that in addition to those provided for in the preceding three articles, this Code shall also apply to every person who has committed outside Japanese territory those crimes mentioned in Book II (articles 77 to 264) that are considered to be punishable by a treaty even if committed outside Japanese territory, Penal Code of Japan, Law No.45 (1907), last amended by Law Nr.138 of 1 August 2003, http://law.e-gov.go.jp/cgi-bin/idxsearch.cgi.Google Scholar

43 Japan and Peru haven't made the declaration that the recognize according to art.21 (1) of the Convention the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention.Google Scholar

44 The extradition treaty between Germany and the United States of 20 June 1978 provides in article 7 that neither of the Parties shall be bound to extradite its own nationals. The competent executive authority of the requested State, however, shall have the power to grant the extradition of its own nationals if, the law of the requested State does not so preclude. Whereas Germany has a ban on extradition of nationals, the U.S Congress enacted legislation in 1990, which expressly provided for the extradition of U.S. citizens to foreign countries, provided that all other requirements of the applicable extradition treaty were met.Google Scholar

45 Winfried Bausback, Art. 16 II GG und die Auslieferung Deutscher an den neuen Internationalen Strafgerichtshof, NJW 1999, p.3320.Google Scholar

46 BGBl. 2000 I 1633, in force since 2 December 2000.Google Scholar

47 The Amendment reads as follows: (translation): “A regulation in derogation of this may be made by statute for extradition to a Member State of the European Union or to an international court provided there is observance of the principles of the rule of law”.Google Scholar

48 See, Art. 25 and 59 (2) GG.Google Scholar

49 Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof – IStGHG, BGBl. I 2002, 2144.Google Scholar

50 See, the draft “Entwurf eines Gesetzes zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der Europäischen Union (Europäisches Haftbefehlsgesetz – EuHbG)” at http://www.bmj.bund.de/images/11623.pdf.Google Scholar

51 See Völkerstrafgesetzbuch – VStGB of 26.6.2002, BGBl. 2002 I 2254, entered into force 30 June 2002.Google Scholar

52 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Official Journal L 190, 18 June 2002.Google Scholar

53 The idea of a European Arrest Warrant (EAW) system whereby a judge in one member state of the EU could directly enforce a warrant for arrest issued by a judicial authority in another member state has been under consideration as part of the European Union's move towards an “area of freedom, security and justice.”Google Scholar

54 The judiciary of each member state will be able to issue a European arrest warrant when a person is being prosecuted for an offence punishable by a custodial sentence of over a year or when the person has been sentenced to custodial or detention order exceeding four months. When an arrest is carried out on the basis of a European arrest warrant in a member state, the person will be handed over by the judiciary of the state where the arrest has taken place pending minimal control over a maximum period of three months.Google Scholar

55 Dual discrimination requires that the facts that motivated issuing an arrest warrant are also incriminated in the member state where the surrender is to be carried out. Amongst the 32 crimes are: membership of a criminal organisation, terrorism, slave trade, sexual exploitation of children and child pornography, illegal trading of drugs, illegal trading of weapons, corruption, money laundering, money counterfeiting, cyber criminality, environmental criminality, assisting with illegal entry and residence, murder, grievous bodily harm, abduction, unlawful detention and kidnapping, racism and xenophobia, forging and trading official documents, forging of payment, illegal trade of nuclear and radioactive substances, rape and crimes that are subject to the competence of the International Criminal Court of Justice.Google Scholar

56 See, the draft “Entwurf eines Gesetzes zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der Europäischen Union (Europäisches Haftbefehlsgesetz – EuHbG)” at http://www.bmj.bund.de/images/11623.pdf.Google Scholar

57 See, Kaleck, Wolfgang, The European arrest warrant from the perspective of a German defence attorney, Statewatch News Online, www.statewatch.org/news/2003/jul/18wk.html.Google Scholar

58 Ibid. The German text can be found at http://www.rav.de/download/RAV_FrankfurterAppell_deu.pdf.Google Scholar

59 OLG Frankfurt/Main., order of 24 February 1999 – 2 Ausl. I 17/95, see StV 1999, p. 264.Google Scholar

60 Decision of 24 June 2003 – Az. 2 BvR 685/03.Google Scholar

61 See, www.cicc.org for the current status of ratification and national legislation. See for the different practice of states in order to comply with the ICC statute Helen Duffy, National Constitutional Compatibility and the International Criminal Court, 11 Duke Journal of Comparative and International Law (2001), pp. 5–38.Google Scholar

62 For a background see Amnesty International: Peru: The “anti-terrorism” legislation and its effects – an unfinished business in the transition to democracy, AMR 46/001/2003 of 12 May 2003.Google Scholar