Overview
The obligation to prosecute or extradite, aut dedere, aut judicare, in turn requires States to create mechanisms of international cooperation in penal matters.[1] As more and more crimes are committed abroad and extraterritorial claims to jurisdiction are formulated, either by expanding the jurisdiction of non-territorial domestic courts or by creating international or regional tribunals, greater inter-state assistance is required to gain access to the perpetrator, victims, or evidence. As such, different modalities are created to facilitate inter-state cooperation. Despite being founded on universal concerns over accountability for perpetrators of gross crimes, the treaties and institutions that create provisions for mutual assistance remain highly positivist. Consequently, there is a tension between the customary duty of aut dedere, aut judicare and positivist notions which continue to underline mechanisms of international cooperation in penal matters. This post will argue that because of these tensions, state, regional and international courts abuse mechanisms of mutual legal assistance and continue to endorse jurisdictional doctrines that ignore the process by which the perpetrator appears before the court.
The Problem
Almost every country in the world has stipulations as to how an accused may be seized, treated, and transported before their court.[2] These limitations on state action are intended to protect the presumption of innocence that is mandated on all states by treaty and international custom. Despite provisions protecting the integrity of the domestic “person,” state, regional, and international courts have exercised jurisdiction regardless of the manner by which foreign “person” are brought before their court. Additionally, courts create broad jurisdictional parameters without equally broad agreements for mutual legal assistance. These problems can be viewed by a variety of examples.
There are numerous cases where States ignore extradition agreements, violate state sovereignty, and do not set aside jurisdiction. In 1961, pursuant to a French arrest warrant, Antoine Argoud was abducted from Munich by unknown persons and taken to Paris where he was seized and brought before a French court.[3] The French Court of Cassation held that the violation of German sovereignty, lack of extradition, and nature of the arrest did not effect the validity of the trial court's jurisdiction.[4] In United States v. Alvarez-Machain, the United States Supreme Court found that abduction of the accused was in violation of general principles of international law, but did not invalidate the trial court’s personal jurisdiction even though Mexico had requested the return of the accused.[5] In 1976, a South African Court found that it had jurisdiction to try two citizens who had been granted asylum in Swaziland.[6] The Court acknowledged that its actions violated principles of public international law, but that it had jurisdiction for any offence committed against the laws of its State.[7] In Prosecutor v. Nikolic, the Appeals Court for the International Criminal Tribunal of Former Yugoslavia (“ICTY”) held that abduction of an accused does not set aside jurisdiction except where the accused is subjected to “serious mistreatment.”[8] Similarly, the International Criminal Court requires custody over the accused in order to make a legal determination of guilt. [9] To do so, the Rome Statute creates modalities of international judicial cooperation under Part 9. However, there is no defense or remedies created by the Rome Statute for when the Prosecutor or State abuses or circumvents the Statute.[10]
Similar problems occur when a state has broad jurisdiction to prosecute persons, but has no means to access evidence, witnesses, or victims. The Iraqi Special Tribunal has jurisdiction over crimes committed in the territories of Kuwait and Iran but has no power to collect evidence or rely on witness testimonies produced by judicial or prosecutorial authorities from those two governments.[11] There is a customary duty to prosecute or extradite but no equal custom to assist in investigations or prosecutions. Under the treaties governing international cooperation in penal matters, requested states are generally given broad discretion to refuse assistance on a number of grounds.[12] As Professor Bassiouni notes, “while multilateral conventions dealing with substantive international criminal law, such as the thirteen [] conventions dealing with terrorism, do contain provisions on extradition and mutual legal assistance, these provisions are not consistent from convention to convention, and are usually limited to a few lines.”[13] In fact, customary law itself is not progressive, but relies upon state practice and consent to gain fruition.
Discussion
The uneven balance between jurisdiction and inter-state cooperation in international criminal law lies at the heart of this. International criminal law, as a discipline, grew out of inter-state cooperation. As states interacted with one another, a consensus grew both in practice and consent, that there existed crimes which by their very nature affected the interests of the world.[14] In 1927, the Permanent Court of International Court of Justice similarly articulated the notion that restrictions upon the independence of States cannot . . . be presumed” and that international law leaves to States “a wide measure of discretion which is only limited in certain cases by prohibitive rules.”[15] Following World War II, many scholars then argued the existence of jus cogens crimes that paved the way for a universal obligation to prosecute, or at least a right to do so. Thus, as Professor Bassiouni states, “the growth of international criminal law has expanded the application of the universality theory of jurisdiction.”[16]
However, equal development never took place in inter-state cooperation. In order to prosecute persons for international crimes, a state has to rely on modalities of international cooperation in order to apprehend the accused, gather evidence, or subpoena witnesses. Subsequently, officials in the country where the person, evidence, or witness is located have a profound influence on the trial. As Brent Wible notes, this creates two fundamental problems.[17] First, the possessory state may be unwilling to cooperate with the prosecuting state. Second, courts for the prosecuting state may have problems with authentication concerning the evidence.
To get around this problem, courts subscribe to the universality of the crime, rather then the practical and violative nature of the apprehension. In Nikolic, the ICTY held that accountability for “Universally Condemned Offences” is a “necessary condition for the achievement of international justice.”[18] Thus, when weighed against the principle of State sovereignty and the fundamental rights of the accused, the possible damage to international justice is far more problematic.[19] The Israeli trial of Adolf Eichmann was intended to create a historical connection between the Jewish Holocaust and the birth of an Israeli state, thus justifying the existence of the state on grounds of security and Jewish preservation.[20] The Supreme Court of Israel held that Eichmann's crime was of a “universal character...condemned publicly by the civilized world.”[21] Similarly, the French Court of Cassation asserted jurisdiction over the accused because of nature of the crime, crimes against humanity.[22]
Implications
The unequal development of international criminal law has created a customary duty to prosecute and extradite without an equal custom to assist and facilitate investigations or prosecutions. The duty to prosecute or extradite and, where appropriate, to punish persons accused of or convicted of jus cogens crimes “leads to the recognition of universal jurisdiction as a means of achieving the goals of aut dedere aut judicare.”[23] Curiously, the notion of universality of obligation and crime has trumped the importance of mutual legal assistance. Because extralegal techniques produce equally valid results as if the accused was extradited or legally deported there is no deterrence on the state from practicing its treaty obligations. As Professor Bassiouni notes, “to place states in a position where they can benefit from the alternative rendition practices encourages further violations and erodes voluntary observes of international law, whether by states or by individuals.”[24] A greater concern may be the creation of an equally heinous presumption that alleged offenders of jus cogens crimes are guilty rather then innocent and less deserving of human right protections. More work needs to be done to explore the context of this unequal development, the tension it creates, its implications, and possible remedies.
[1] See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L.J. 2537 (1991); Art. 18, United Nations Convention Against Transnational Organized Crime, G.A. Res. 25, annex I, U.N. GAOR, 55th Sess., Supp. No. 49, at 44, U.N. Doc. A/45/49 (Vol. I) (2001), not in force.
[2] See generally Art. 9, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
[3] In Re Argoud, 45 I.L.R. 90, 90 (Ct. of Cass. 1964).
[4] Id. at 98.
[5] United States v. Alvarez-Machain, 504 U.S. 655 (1992); see also United States v. Matta-Ballesteros, 71 F.3d 754 (1997); United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997)
[6] 68 I.L.R. 7, 8 (S. Afr., Natal Provincial Division 1976)
[7] Id. at 13-14.
[8] Prosecutor v. Nikolic, Case No. IT-94-2, Decision on Interlocutary Appeal Concerning Legality of Arrest, ¶ 27-28 (June 5, 2003).
[9] Elizabeth Chadwick, 9 J. Conflict & Security L. 71, 98 (2004)
[10] In fact, there was a recommendation by the Task Force that care be taken “to assure that ongoing efforts at mutual legal assistance are not undermined. Structures must be created that supplement and reinforce existing schemes. The rule of law must be strengthened and not eroded as a result of the creation of an international criminal court” see Report of the Task Force on an International Criminal Court of the American Bar Association 49 (1994) cited in Note, Samantha V. Ettari, A Foundation of Granite or Sand? The International Criminal Court and United States Bilateral Immunity Agreements, 30 Brook. J. Int'l L. 205, 244 (2004)
[11] See M. Cherif Bassiouni, IraqPost-Conflict Justice in Iraq: An Appraisal of theSpecial Tribunal, 38 Cornell Int'l L.J. 327, 383-83 (2005)
[12] Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes under International Law, 35 New Eng. L. Rev. 399, 412 (2001)
[13] M. Cherif Bassiouni, Legal Control of International Terrorism: A Policy-Oriented Assessment, 43 Harv. Int'l L.J. 83, 94-95 (2002)
[14] These crimes are known as delicti jus gentium.
[15] S.S. Lotus, 1927 P.C.I.J. (ser. A.) No. 9
[16] M. Cherif Bassiouni, International Extradition 367 (1996)
[17] Brent Wible, “De-Jeopardizing Justice”: Domestic Prosecutions for International Crimes and the Need for Transnational Convergence, 31 Denv. J. Int'l L. & Pol'y 265, 280 (2002)
[18] Nikolic at ¶ 25
[19] Id. at ¶ 26
[20] see generally Leora Bilsky, Transformative Justice: Israeli Identity on Trial, 2004; Idith Zertal, Israel's Holocaust and the Politics of Nationhood; During an interview with the New York Times, Ben Gurion similarly issued these sentiments while stating, “I don't care what verdict is delivered against Eichmann. Only the fact that he will be judged in a Jewish state is important.” Ben Gurion available at http://www.dartmouth.edu/~wgst60/projects/eichmann/Trial%20according%20to%20Ben-Gurion.pdf
[21] People of Israel v. Eichmann, 36 ILR 306 (Sup. Ct. Is. 1962).
[22] Federation Nationale des Deportes et Internes Resistants et Patriotes and Others v. Barbie, 78 ILR 130, 131 (
[23] M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int'l L. 81, 152-53 (2001)
[24] Bassiouni, supra note 16, at 219.
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