International law, Sixth edition
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International Law MALCOLM N. SHAW
Extradition
206 The practice of extradition enables one state to hand over to another state suspected or convicted criminals who have fled to the territory of the former. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law. 207 It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that the crime involved should be a crime in both states concerned, 208 and that of specialty, i.e. a person surren- dered may be tried and punished only for the offence for which extra- dition had been sought and granted. 209 In general, offences of a political 204 41 ILM, 2002, p. 130. See also the decision of 3 June 2003. 205 542 US 692, 714 ff. (2004) and see above, chapter 4, p. 160. Note that in Rasul v. Bush, the Supreme Court held that it was immaterial that the petitioners invoking the Alien Tort statute were being held in military custody in Guantanamo Bay, 542 US 466 (2004). 206 See e.g. I. A. Shearer, Extradition in International Law, Leiden, 1971; M. C. Bassiouni, In- ternational Extradition and World Public Order, Leiden, 1974; C. Nicholls, C. Montgomery and J. B. Knowles, The Law of Extradition and Mutual Assistance, 2nd edn, Oxford, 2007; I. Stanbrook and C. Stanbrook, The Law and Practice of Extradition, 2nd edn, Oxford, 2000; M. Forde, The Law of Extradition in the UK, London, 1995; A. Jones and A. Doobay, Jones and Doobay on Extradition and Mutual Assistance, London, 2004; G. Gilbert, Aspects of Extradition Law, Dordrecht, 1991, and Gilbert, Transnational Fugitive Offenders in In- ternational Law: Extradition and Other Mechanisms, The Hague, 1998; L. Henkin, R. C. Pugh, O. Schochter and H. Smit, International Law: Cases and Materials, 3rd edn, St Paul, 1993, p. 1111 and Oppenheim’s International Law, p. 958. See also Study of the Secretariat on Succession of States in Respect of Bilateral Treaties, Yearbook of the ILC, 1970, vol. II, pp. 102, 105. 207 See e.g. the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mauds- ley, the Lockerbie case, ICJ Reports, 1992, pp. 3, 24; 94 ILR, pp. 478, 507 and the Dissenting Opinion of Judge Bedjaoui, ICJ Reports, 1992, p. 38; 94 ILR, p. 521. 208 But see now the House of Lords decisions in Government of Denmark v. Nielsen [1984] 2 All ER 81; 74 ILR, p. 458 and United States Government v. McCaffery [1984] 2 All ER 570. 209 See e.g. Oppenheim’s International Law, p. 961. j u r i s d i c t i o n 687 character have been excluded, 210 but this would not cover terrorist ac- tivities. 211 As noted above, it is common for many treaties laying down multiple bases for the exercise of jurisdiction to insist that states parties in whose territory the alleged offender is present either prosecute or extradite such person. 212 In addition, many treaties provide for the automatic in- clusion within existing bilateral extradition treaties between states parties to such treaties of the offence concerned. 213 Many states will not allow the extradition of nationals to another state, 214 but this is usually in circum- stances where the state concerned has wide powers to prosecute nationals for offences committed abroad. Further, the relevance of human rights law to the process should be noted in that extradition to a state that may torture or inhumanely treat the person concerned would, for example, violate the European Convention on Human Rights. 215 210 Ibid., p. 962. 211 See e.g. the European Convention on the Suppression of Terrorism, 1977, article 1 of which provides a list of offences which are not to be regarded as political offences or inspired by political motives, an approach which is also adopted in article 11 of the Convention for the Suppression of Terrorist Bombing, 1997. See also the McMullen case, 74 AJIL, 1980, p. 434; the Eain case, ibid., p. 435; Re Piperno, ibid., p. 683 and US v. Mackin 668 F.2d 122 (1981); 79 ILR, p. 459. A revised directive on international extradition was issued by the US Department of State in 1981: see 76 AJIL, 1982, pp. 154–9. Note also the view of the British Home Secretary, The Times, 25 June 1985, p. 1, that the political offences ‘loophole’ as it applied to violent offences was not suitable to extradition arrangements between the democratic countries ‘sharing the same high regard for the fundamental principles of justice and operating similar independent judicial systems’. The UK law relating to extradition was consolidated in the Extradition Act 1989. Note in addition the Extradition Act 2003, providing inter alia for fast-track extradition procedures within the European Union, extended by the UK in the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 to the US despite an assymetrical arrangement with the US under the UK–US Extradition Treaty, 2003: see e.g. Nicholls et al., Law of Extradition, pp. 10 ff. and Norris v. Secretary of State for the Home Department [2006] UWHC 280 (Admin) and Norris v. USA [2008] UKHL 16. See also Government of Belgium v. Postlethwaite [1987] 2 All ER 985 and R v. Chief Metropolitan Magistrate, ex parte Secretary of State for the Home Department [1988] 1 WLR 1204. 212 See above, p. 673. 213 See e.g. article 8 of the Hague Convention for the Suppression of the Unlawful Seizure of Aircraft, 1970, article 8 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, article 8 of the Internationally Protected Persons Convention, 1973 and article 4 of the European Convention for the Suppression of Terrorism, 1977. 214 See e.g. article 3(1) of the French Extradition Law of 1927, and article 16 of the Basic Law of the Federal Republic of Germany. 215 See e.g. the Soering case, European Court of Human Rights, 1989, Series A, No. 161; 98 ILR, p. 270 and Saadi v. Italy, European Court of Human Rights, judgment of 28 February 2008. |
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