Law and practice of extradition: A comparative regional perspective
While international criminal tribunals and the International Criminal Court have received a lot of attention over the last 30 years, domestic criminal law enforcement is likely to prevail.
There are a number of reasons for this. First of all, criminal law epitomizes national sovereignty. States are highly reluctant to transfer their sword powers over crimes and misdemeanors that occur within their legal order. Secondly, due to financial and logistical constraints, international criminal courts and tribunals can only process a limited number of cases. And finally, the priority of national criminal courts is also institutionally acknowledged in the complementarity principle, stipulating that a case is only admissible before the International Criminal Court if a state does not act at all or is unwilling or unable to genuinely carry out investigations or prosecutions.
In view of the process of globalization that offers huge opportunities for organized crime, both in terms of expansion of operations and possibilities to evade justice, states are confronted with considerable challenges. They are bound to cooperate and to that purpose conclude treaties and establish institutional frameworks. Mutual legal assistance in criminal matters encompasses a wide array of law enforcement activities, including police cooperation, exchange of criminal evidence, the freezing and confiscation of assets, extradition and the transfer of criminal proceedings and sentenced persons.
This work focuses on extradition. It aims to comprehensively map and analyze extradition law and practice in four continents – Africa, the Americas, Europe and Oceania/ South East Asia – in search of commonalities and distinctions. The emphasis on extradition is warranted by it’s being the ‘classic’ example of international cooperation in criminal matters. Moreover, extradition of fugitives is indispensable for criminal law enforcement in an international context. After all, common law jurisdictions in particular do not allow criminal proceedings in the absence of the accused. The present authors are of the opinion that, in view of its paramount importance for international criminal law enforcement, extradition is unduly neglected in scholarly discourse and legal education.
As to the substance of the crimes, the emphasis in this work will be on the extradition of alleged perpetrators of transnational and international crimes. The first category is obviously of prime concern to international criminal law enforcement, as transnational crime by definition affects the interests of several jurisdictions and is, due to its volatile nature, particularly difficult to repress. The attention to the second category follows from the universal obligation, as articulated in the Rome Statute, to end impunity of perpetrators of the so-called ‘core crimes’ (genocide, crimes against humanity, war crimes and aggression) under the jurisdiction of the International Criminal Court. While this work will not address the ‘vertical cooperation’ between states and the ICC and other international criminal tribunals, it will inquire whether extradition has furthered or hampered the prosecution of perpetrators of these international crimes.
The methodology of this work is primarily of a descriptive/ analytical nature. To that purpose, the authors will engage in a thorough exploration of international conventions, national legislation, case law and academic writings. However, in view of the specific, politically sensitive nature of the concept of extradition, a neutral normative assessment would be inappropriate, if not impossible. In extradition, there are many stakes involved. Traditionally, extradition was considered as an essentially inter-state affair. States were expected to assist each other, on the basis of reciprocity, in the enforcement of their criminal laws. The fugitive might only indirectly reap the benefits of a refusal to surrender him, which was usually predicated on considerations of national self-interests and the exercise of sovereign prerogatives. Only in the last two decades of the previous century, has the opinion emerged that the requesting state may, by surrendering the fugitive, expose him to a real risk of violation of fundamental rights, like torture or the infringement of fair trial rights in the requesting state. This idea was mainly fueled by the landmark-decision of the European Court of Human Rights in the Soering-case. After ‘9/11’ the pendulum moved in the opposite direction again, when it was held that too much concern for the fundamental rights of the fugitive might render criminal law enforcement in respect of terrorism in particular ineffective. The authors share the concern that such a conception stands a risk of losing sight of value pluralism which has always governed and limited the practice of extradition.
The interface of diverse and sometimes opposite interests guides the structure of the work, which is organized on the basis of five topics:
- extradition and legal pluralism;
- extradition and human rights;
- extradition and sovereignty;
- extradition and evidence;
- alternatives to extradition.
Each of these five topics addresses the law and practice in respect of the particular topic in the four regions.
prof. mr. dr. H.G. (Harmen) van der Wilt