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The “Penological Exception” to Extradition: On Ultimate Penalties, Human Rights and International Relations

Published online by Cambridge University Press:  04 July 2014

Leon Sheleff
Leon Sheleff
Affiliation:
Professor of Law and Sociology, Tel Aviv University.
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One of the most significant recent developments in the law of extradition is the serious consideration that courts are willing to display to the punitive consequences of an extradition order, if capital punishment is the specific penalty that the requested person is liable to have imposed on him if convicted. At the same time, this development serves also as one of the most dramatic examples of the manner in which the subject of human rights has become a factor in international relations, which nation-states can disregard only by exposing themselves to negative assessments linked to reluctance to respond to formal requests. For the most part the “linkage” has been focused mainly on economic aid, where donor countries would approve requested aid contingent on positive accounting in human rights, but now, as a result of a number of novel judicial decisions, it seems that similar factors will be examined, when requests for extradition are submitted. At the moment, the focus is on the use of the death penalty, but the very reasoning process used may well open up further possibilities.

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Articles
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Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 310 - 338
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 See, for instance, Wyngaert, Christine Van den, The Political Offence Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order (Deventer, the Netherlands, Kluwer, 1980).Google Scholar There are problems relating to this rule as noted in the statement: “Just as there is no generally accepted definition of the term ‘political offence’ in extradition law, no recognized terminology exists for the classification of political crimes” (p. 105). For further works on extradition, see Bassiouni, M.C., ed., International Extradition and World Public Order (Leyden, Sijthoff, 1976)Google Scholar; Shearer, I. A., Extradition in International Law (Manchester U. P., 1971)Google Scholar; Gilbert, G., Aspects of Extradition Law (Dordrecht, Martdnus Nyhoff, 1991).Google Scholar For the definitive Hebrew work see, Feller, Z. S., Extradition Law (Hebrew University of Jerusalem, 1980).Google Scholar

2 See, for instance, Van der Wyngaert, supra n. 1, at 18: “The political offence exception is a typical offshoot of the nineteenth century. It is the logical outgrowth of the political and ideological controversies between the new democratic states and the despotic states of the Ancien Regime. The political offence exception allowed liberal democracies to protect political dissidents fleeing from despotic states; in doing so, however, they could at the same time support democratic tendencies in other countries without directly intervening in their internal affairs”. Later Van den Wyngaert writes: “…extradition treaties are based on the principle of unilateral characterization according to which the characterization of the facts as political or common offences is exclusively and unilaterally left to the discretion of the requested state” (p. 103).

3 On reciprocity, see especially Shearer, supra n. 1, at 31–34. Although not all treaties of extradition specify reciprocity, it is clear that differential penological rules are almost inherently incapable of guaranteeing reciprocity.

4 Case of Soering, 161 Eur. Ct. H.R. (Ser., A); reprinted in (1989) 28 LL.M. at 1063.

5 Ibid. The Court held that: “The manner in which (the death penalty) is imposed or executed, the personal circumstances of the condemned person, and a disproportionality to the gravity of the crime committed, as well as to conditions of detention awaiting execution are examples of factors capable of bringing the treatment or punishment received by the condemned person” within the purview of the protection of the European Convention, (para. 104) (emphasis added).

6 There was evidence presented to the Court that the period of time usually spent on death row was six to eight years.

7 She had not challenged the extradition request in court.

8 She had not been present at the scene of the murder, but had apparently done much of the instigating for the crime. There was also evidence of the strong psychological influence she had over Soering.

9 Regina v. Governor of Brixton Prison, Ex parte Soering (Lloyd L.J. and Macpherson, J.), December 1987.

10 The House of Lords had refused to grant leave to appeal: re Soering, (1988) Crim. L. Rep. 307 (Q.B.). Having exhausted all appeal possibilities in Great Britain, it then became possible to make a plea to the European authorities.

11 Supra n. 4.

12 There has been some academic discussion as to the validity of such an assurance, since there are two different levels of government, the Federal Government making the claim for extradition, and the state government being responsible for the prosecution.

13 The series of cases to be discussed deal with the United States as the requesting party — but it should be noted that there was an earlier case, decided in a national court, when a French court, relying on the ordre public clause refused to grant extradition to Turkey, which still retained the death penalty: Fidan case, Conseil d'Etat. 27 Feb. 1987, (Recueil Dalloz Sirey: Jurisprudence, 1987), 305–310. It might be noted that this decision was taken only a few years after France had abolished the death penalty, in furtherance of specific promises made by President Mitterand during the election campaign. At the same time, various aspects of the Turkish penal system had come under much criticism, and a delegation by the European Commission on Human Rights had been sent to report on the conditions in its prisons. (See Public Statement on Turkey by European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, adopted on 15 Dec. 1992 in (1993) 14 Human Rights L. J. 49.

14 Kindler v. Canada, 67 C.C.C. 3d 1 (Can. 1991); in re Ng Extradition, 67 C.C.C. 3d 61 (Can. 1991). Both cases were heard simultaneously on 26th September, 1991.

15 Short v. The Netherlands, (1990) 76 Rechtspraak van de Week 358; Dutch Supreme Court. Dec. 30, Mar. 1990.

16 See, for instance, Connecticut Board of Pardons v. Dumschat, 462 U.S. 468 (1981).

17 The European Court of Human Rights is the judicial arm of the Council of Europe, presently numbering nearly thirty nations.

18 See, for instance, my article, “Mandatory life Sentences: A Comparative Study of the Law in Israel, Great Britain, The United States and West Germany” (1982) 6 Tel Aviv U. Studies in Law 116.

19 For a discussion of the German approach in the light of decisions by its Constitutional Court, see Horton, K. C., “Life Imprisonment and Pardons in the German Federal Republic” (1980) 29 Int'l & Comp. L. Q. 530CrossRefGoogle Scholar; Smit, Dirk van Zyl, “Is Life Imprisonment Constitutional? The German Experience” (1992) Public Law 263.Google Scholar

20 The issue for life sentence, just as for the death penalty, would revolve around the interpretation of article 3 of the Convention: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

21 See, for instance, Steinert, Heinz, “Is There Justice — No, Just Us! — ‘Justice’ as an Attempt to Control Domination and the Problem of State-Organized Pain Infliction” (1991) 25 Is. L. R. 710CrossRefGoogle Scholar; Dodge, Calvert, A World Without Prisons: Alternatives Throughout the World (Lexington, Mass., 1979).Google Scholar For a general discussion of the role of prisons in the modern world, see Smit, Dirk van Zyl and Dunkel, F., eds., Imprisonment Today and Tomorrow: International Perspectives on Prisoners' Rights and Prison Conditions (Deventer, Kluwer, 1991).Google Scholar

22 See, for instance, discussion of the Eighth Amendment to challenge inter alia, prison conditions, in Berkson, Larry, The Concept of Cruel and Unusual Punishment (Lexington, Mass., 1976).Google Scholar

23 Sheleff, Leon, Ultimate Penalties: Capital Punishment, Life Imprisonment, Physical Torture (Columbus, Ohio, 1987).Google Scholar

24 For a discussion of international human rights protection against torture, see Lemer, N., “The U.N. Convention on Torture” (1986) 16 Is. Yrbk. Human Bights 126.Google Scholar

25 See, for instance, Joyce, James Avery, Capital Punishment: A World View (New York, 1961) 236.Google Scholar

26 The most noted example is Gary Gilmore, the first condemned prisoner to be executed in the United States after a ten-year moratorium, from 1970 to 1980, on executions, including four years when it was declared to be unconstitutional. For the Gilmore case, see Bessie Gilmore, as next friend Gary Gilmore v. Utah, 429 U.S. 1012 (1976).

27 See, for instance, Penal Policy File No. 4, “Suicides in Prison” (1980) 20 Howard J. of Penology and Crime Prevention 41.Google Scholar

28 See my discussion in Ultimate Penalties, supra n. 23, chap. 5, “life Imprisonment and Human Rights”.

29 For a good recent attempt to deal specifically with their problems — preparing for their return to the community, see Mitchell, Barry, “Preparing Life Sentence Prisoners for Release” (1992) 31 Howard J. Criminal Justice 224.CrossRefGoogle Scholar

30 See supra n. 23.

31 The United States is one of the only countries that indulge in the practice of imposing sentences that are longer than a normal life-span, including for hundreds of years. The reason for this may be to ensure that no pardoning authority will intervene to allow release, but one senses that there is some hidden psychological underpinnings — a message of a penalty beyond even that of life.

32 For a recent example of a judicial order to release prisoners because of the unconstitutional nature of unsatisfactory conditions of confinement, see Newman v. Graddick, 740 F. 2d 1523 (11th Cire. 1984). For a discussion of cases where the court was so disturbed by the information as to prison conditions that it mandated improvements, including even budgetary demands, see Frug, Gerald, “Judicial Power of the Purse” (1978) U. Penn. L. R. 715.CrossRefGoogle Scholar In general, see Williams, Alexander Jr.,“Court-ordered Prison Reform —An Argument for Restraint” (1991) 34 Howard L. J. 559Google Scholar; and Hall, Daniel, “The Eighth Amendment, Prison Conditions and Social Context” (1993) 58 Missouri L.R. 207.Google Scholar For survey of judicial intervention in prison systems, see review article (of four books) by Feeley, Malcolm and Rubin, Edward, “Prison Litigation and Bureaucratic Development” (1992) 17 Law and Soc. Inquiry 125.CrossRefGoogle Scholar

33 For an analysis of cases of isolation in prison in the United States and an assessment of the impact on the prisoner, see Benjamin, Thomas and Lux, Kenneth, “Solitary Confinement as Psychological Punishment” (1977) 13 Cal. West. L. R 265.Google Scholar The authors, a lawyer and a psychologist, discues the need for due process protection for a prisoner before being placed in solitary confinement They conclude that: “When the prison administration places a prisoner in solitary confinement for a substantial length of time, it may be committing a criminal act far worse than the original crime the prisoner committed in society, and far worse than the wide variety of disciplinary branches which the prisoner may commit while in prison”. They end their article by stating: “After witnessing the results of solitary confinement, we believe that it is criminality at one of its highest levels. We are drawn to this conclusion when we ponder the deeply injurious behavior exercised upon prisoners by the permission and mandate of public authorities charged with their safe keeping” (p. 296).

34 Hassan, Farooq, “The Endangered Right to Privacy: Use of International Norms by Municipal Forums” (1983) 18 Cal. West. Int'l L. J. 248.Google Scholar

35 Ibid., at 263.

36 Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980); and Sterling v. Cupp, 290 Or. 611.625 P.2d 123 (1981).

37 Lareau v. Manson, ibid., at 1188.

38 Somchai Liangsiriprasert v. United States, Privy Council Appeal No. 6 of 1990, [1990] 2 All E.R. 866. The case is given in full in (1990) 29 I.L.M. 1390.

39 Ibid. In a related context, it may be noted that the Privy Council has been severely criticized recently for its failure to adopt satisfactory monitoring procedures — not in dealing with extradition, but with its direct authority as a court of final instance in capital cases for some of the commonwealth countries. See Note, “International Law and the Right to Legal Representation in Capital Offence Cases — A Comparative Approach” (1992) 12 Oxford J. of Legal Studies 284. Particular criticism was made of the fact that in some cases, from Caribbean countries, there had been “…inadequate and unavailable legal representation for Death Row prisoners”, but the Privy Council had consistently refused to intervene on behalf of death row prisoners, who had been denied proper representation. In one case the accused “was convicted of murder and sentenced to death after having been tried in the absence of counsel, owing to the refusal of the trial judge to grant him an adjournment” (p. 286). The article provides examples from decisions of both the United Nations Committee on Human Rights and the European Court of Human Rights to suggest the need for Commonwealth countries and the Privy Council to adapt to the “dynamic jurisprudential trend” emerging from the work of the UN Human Rights Committee (p. 293). However, in a most recent decision handed down at the beginning of November, the Privy Council held that the death penalty could no longer be carried out against two condemned prisoners in Jamaica, who had been kept in death row for over 14 years, partially due to a lengthy round of appeals.

40 For the decision that capital punishment could be used only if a life had been taken see Coker v. Georgia, 433 U.S. 684 (1977). However, within the military justice system, there apparently still exists the possibility of a death penalty, even without the taking of a life, for instance, in the case of spying. See Anderson, David, “Spying in Violation of Article 6 VCMJ: The Offense and the Constitutionality of its Mandatory Death Penalty” (1990) 127 Military L. R. 1.Google Scholar

41 Hakney, David, “A Trunk Full of Trouble, Harmelin v. Michigan”, (1992) 27 Harv. Civil Rights — Civil Liberties L. R. 263.Google Scholar

42 People v. Harmelin, 440 N.W. 2d. 75 (1989).

43 Harmelin v. Michigan, 111 S. Ct. (1990), 2680.

44 Supra n. 41, at 263. For general discussion see Tidwall, Karen, “The Proportionality Principle — its Sources and Meaning Today: Harmelin v. Michigan and its Precedent” (1992) 25 Creighton L. R. 1249Google Scholar; and Spett, Peter, “Confounding the Gradations of Iniquity: An Analysis of Eighth Amendment Jurisprudence Set Forth in Harmelin v. Michigan” (1993) 24 Colum. Human Rights L.R. 203.Google Scholar See also case comments by Marton, Christine in (1992) 30 Duqverne L. R. 387Google Scholar; and Poshke, Marc (1992) 23 Loyola U. Chic. L. J. 273.Google Scholar

45 Brown, Kelloe and Manfred, Sophia, “Extradition: Divergent Trends in International Cooperation” (1992) 33 Harv. Int'l L. J. 223.Google Scholar

46 Ibid., at 238–9.

47 See Gearty, C. A., “The European Court of Human Rights and the Protection of Civil Liberties: An Overview” (1993) 52 Cambridge L J. 89CrossRefGoogle Scholar; the article deals, inter alia, with prison conditions.

48 The Eighth Amendment uses the language of “cruel and unusual” as the criterion for judging the inadmissibility of a punishment.

49 Furman v. Georgia, 408 U.S. 23 (1972).

50 The judgment quotes from the research work of a leading criminologist, Marvin Wolfgang and his associates, Kelly, Arlene and Nolde, Hans, “Comparisons of the Executed and Commuted Among Admissions to Death Row” (1962) 53 J. of Crime, Criminology and Po. Sc. 301.Google Scholar

51 For a critique of the manner in which this rule was applied by the Supreme Court itself, see my article, “The Arbitrariness of the ‘Arbitrary” Rule in Death Penalty Cases” (1981) 11 Is. Yrbk. Human Rights 217.

52 Gregg v. Georgia, 428 U.S. 153 (1976).

53 See Woodson v. N. Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

54 For a critical review of Supreme Court decisions see Geiner, William, “Death at any Cost: A Critique of the Supreme Court's Recent Retreat from its Death Penalty Standard” (1985) 12 Fla. S. U. L. R. 737.Google Scholar

55 For descriptions of death row conditions, see Magee, Doug, Slow Coming Dark: Interviews on Death Row (New York, 1980).Google Scholar

56 It would seem that personal accounts outnumber academic research. For a good personal account see Runyon, Tom, In For Life (New York, 1953).Google Scholar For a good research account of the effects of long-term imprisonment (carried out in Britain), see Cohen, Stanley and Taylor, Laurie, Psychological Survival: The Experience of Long Term Imprisonment (New York, 1973).Google Scholar

57 See my critique in Ultimate Penalties, supra n. 23, chap. 5 “Life Imprisonment and Human Rights”.

58 See, for instance, Carver, Sherri, “Retribution — A Justification for the Execution of Mentally Retarded and Juvenile Murderers” (1991) 16 Okla. City U. L. R. 1255.Google Scholar See also Andre-Wells, Linda, “Imposing the Death Penalty upon Juvenile Offenders: A Current Application of the Eighth Amendment's Prohibition Against Cruel and Unusual Punishment” (1991) 21 N. M. L. R. 373.Google Scholar On the death penalty for the mentally retarded, see Penry v. Lynaughy, 109 S. Ct 2934 (1989); and for a minor, see Thompson v. Oklahoma 487 U.S. 815 (1988).

59 However, there has recently been a hint of a re-consideration of this position. Thus, a murderer serving a life sentence, was granted the right not to be put in a cell together with a cellmate who smoked. Referring to the 7–2 Supreme Court decision in favor of William McKinney, handed down in June 1993, the International Herald Tribune commented: “… he deserves only the life sentence the state gave him, not a cancerous death at the hands of a chain-smoking cellmate”: “Even a Lifer Has Rights” International Herald Tribune, June 20, 1993.

60 Shea, Michael, “Expanding Judicial Scrutiny of Human Rights in Extradition Cases after Soering” (1992) 17 Yale J. Int'l L. 85.Google Scholar

61 Ibid., at 91–2.

62 Ibid., at 93. Other reasons advanced involve both principle (“judicial inquiry into conditions overseas would involve courte in foreign affairs, considered the prerogative of the head of state”) and practice (“courts are ill-equipped to discover the truth about conditions overseas and lack the investigative machinery to verify claims of human rights abuses in other countries”).

63 See Brown, L. Neville, The Court of Justice of the European Communities (London, 3rd ed., 1989).Google Scholar

64 Shea, supra n. 60, at 98.

65 Ibid., see especially at 136–7.

66 Even Protocol 6 dealing with the abolition of capital punishment, is limited to peacetime conditions.

67 At the end of 1992, there were about 3,000 prisoners in the United States awaiting execution.

68 For a good discussion of death row conditions, based on interviews, see Johnson, Robert, Condemned to Die: Ufe Under Sentence of Death (Washington, D.C., 1981).Google Scholar

69 Kirkwood v. U.K. App. No. 10479/83, 37 Eur. Comm. H.R. Dec. and Rep. 209 (1983).

70 Shea, supra n. 60, at 110. He writes: “The Commission in Kirkwood had found that the California appeals process was designed to protect the death row inmate, and that the inmate might choose to accelerate the process by waiving his appeal rights”. Similar arguments have been used in the United States to reject appeals based on the cruelty of death row conditions. But, as Shea points out, the Soering Court specifically rejected this choice — between suffering the conditions or waiving one's right.

71 There are, to my knowledge, no figures on the number of people on death row actively pursuing all avenues of appeal, and the number passively waiting for the governor to sign the death warrant. Because of the large number of prisoners on death row, the lengthy period of time that they remain there, and the small proportion actually executed, there are those who argue that the real punishment of the death penalty is not the execution (which rarely takes place — less than 5%) but the tensions of death row.

72 Quigley, John and Shank, Adele, “Death Row as a Violation of Human Rights: Is it Illegal to Extradite to Virginia?” (1989) 30 Va. J. Int'l L. 241.Google Scholar

73 Ibid., at 259.

74 Ibid., at 264.

75 Ibid., at 271.

76 Liliich, Richard, “The Soering Case’ (1991) 86 Am. J. Int'l L. 128.Google Scholar Lfflich also discusses the annoyed reaction of the American authorities to the court's decision, and suggests it may even affect their willingness to eign human rights conventions. In general this article contains a good account of the stage-by-stage details of the Soering affair.

77 Council of Europe, “Protocol to the Convention for the Protection of Human Rights and Fundamental Freedom Concerning the Abolition of the Death Penalty” (1984) 14 I.L.M. 539.Google Scholar

78 Supra n. 15.

79 See Nato, Status of Forces Agreement (SOFA), 19th June, 1951, 4 U.S.T. 1792.

Such Agreements are entered into by the United States in other parts of the world, but for the most part, similar problems have not arisen; firstly, because there is generally no regional Convention similar to the European Convention, although the South American situation contains some parallels, and other regions are moving in that direction; secondly, because the country of asylum might itself have the death penalty. In this regard, it might be noted that in the extradition of Demjanjuk to Israel, the United States made no stipulation as to the penalty, even though he would be charged for some of the very few capital crimes that Israel has. For the extradition case, see Demjanjuk v. Petrovsky, 776 F.2d 571 (1985).

80 Supra n. 76.

81 Parkerson, John and Stoehr, Carolyn, “The U.S. Military Death Penalty in Europe: Threats from Recent European Human Rights Developments” (1990) 129 Military L. R. 41.Google Scholar

82 Ibid., at 41.

83 Ibid., at 52–60. For the details of one of the most noted cases, in which German public opinion was strongly opposed to the extradition, but the serviceman was willing to be tried by an American military court, see United States v. Dock, 28 M.J. 117 (C.M.A. 1989).

84 For a short account of this case, see ibid., at 44, n. 9.

85 Ibid., at 75. They stress also the political implications: “As the U.S. position regarding the death penalty is seen as increasingly out of step with the practices of other sending states, potential NATO receiving states may find the role of host to U.S. forces politically unattractive”.

86 supra n. 14. In the case of Kindler, he had already been sentenced to death, while Ng had fled just prior to being charged with 12 counts of murder.

87 Most of the responses to the Soering decision were published before the Canadian decisions; though some did make passing mention to this impending judgment. Shea's article was published subsequent to the Canadian decisions, and he discusses them in detail, concluding that: “Neither plurality opinion … disavowed Soering unequivocally”, and “left the possibility that a future case with facts closer to those in Soering might warrant a judicial refusal to extradite”. Further he notes, “… Soering's persuasive value from a court beyond the reach of the European Convention” (p. 117).

88 Wyngaert, Christine Van den, “Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?” (1990) 39 Int'l & Comp. L. Q. 757.CrossRefGoogle Scholar

89 Ibid., at 768.

90 Ibid., at 769.

91 Compare the titles of all the above-mentioned articles, nearly all of which have the term “human rights”.

92 Heilbrunn and Learer v. Austria 15776/879, Dec. 5, 1989, unpub. See also Geller v. The Netherlands 11615/85, in which a punishment of 50 years imprisonment for several acts of indecency with minors was held not to be in violation of the Convention.

93 supra n. 23. The book concludes with the suggestion that both the death penalty and life imprisonment should be “subject to the monitoring procedures of an impartial international judicial body, which would examine all aspects of the criminal justice process — from arrest and interrogation through the trial and appeal procedures to the sentencing and pardon stages” (p. 381). I had used the work of the European (and Latin American) Courts of Human Rights as the model — but had not considered that, through extradition proceedings, an early start was about to be made in this direction. The argument includes the hope that “… in the course of time, in the framework of calm and measured debate, norms and standards would be laid down that would obligate member states of the world community and its constituent organizations, and would serve as a guide in momentous judicial decisions as to the sentences of life and death”.

94 See Breeler, Fenton, Reprieve: Study of a System (London, Harrop, 1965).Google Scholar See also recent decision of the European Court of Human Rights in respect of release of life prisoners: Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666.

95 The issue was based on the compatibility of a mandatory life sentence with the First Article of the Basic Law: “The dignity of man shall be inviolable. To respect and protect it shall be the duty of all State authorities”. See references to Horton, Sheleff and Smit, supra nn. 18 and 19.

96 See, for instance, Rummel v. Estelle, 445 U.S. 263 (1980); Bordenkircher v. Hayes, 434 U.S. 357 (1978). Most of the cases are based on issues of disproportionality or on the mandatory nature of the punishment See my discussion in Chap. 5 of Ultimate Penalties, supra n. 23.

97 Almost all life prisoners (a mandatory punishment for murder) are given a fixed term sentence by Presidential pardon, and then may anticipate a further one-third reduction for “good behavior”. Most “lifers” in Israel serve from 15 to 20 years. These figures do not necessarily apply to security or political prisoners, who receive life sentences — though some have been given early release, in prisoner exchanges.

98 Gordon, Evelyn, “Court Puts Off Decision in Manning Case”, Jerusalem Post, June 21, 1993.Google Scholar

99 See article in Ha'aretz, July 12, 1993.