International Criminal Cooperation

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 476-529

476

CHAP TER 9

INTERNATIONAL

CRIMINAL

COOPER ATION

A. INTRODUC TION

This chapter deals wit h the primary mechanism s which states use to as-

sist each other in the prosecution of criminal offenders. Those mechan-

isms are extradition and mutual legal assistance in criminal matters, and

they are discus sed in Sections B and D respectively. There is a tendency

in older and even contemporary caselaw to refer to all such cooperat ive

mechanisms a s “mutual assist ance.” Because “mutual legal assist ance,”

meaning the tre aty-based tran smission of evidence between states, has

become a term of art, the approach here will be to e schew the older

practice and call each mode of cooperation by its usu al name.

Extradition and mutual legal assistance between states are neces-

sary because of t he overarching legal underpinning of al l international

and transn ational cri minal law: the territorial s overeignty of states a nd

the limits on the exercise of enforcement jurisdiction by criminal au-

thorities (for more on this, see Chapter 1, Section D). The importance

of international crim inal cooperation for dealing with t hese limits was

expressed by L a Forest J in an oft-cited passage from United States of

America v Cotroni:

The investigation, prosecution and s uppression of crime for the pro-

tection of the citize n and the mainten ance of peace and public or-

der is an import ant goal of all organiz ed societies. The pursu it of

that goal cannot realistically be conf‌ined within national boundaries.

International Criminal Cooperation 477

That has long been the c ase, but it is increasingly evident to day. Mod-

ern communication s have shrunk t he world and made McLuhan’s

global village a re ality. The only respect paid by the inter national

crimina l community to national b oundaries is when t hese can ser ve

as a means to fr ustrate the ef forts of law enforcement and judic ial

authoritie s.1

Accordingly, states have been moved by common interest to enter into

agreements whereby each could do the important cr iminal enforce-

ment work of the others, in situations where proper investigation and

prosecution are confounded by “national boundaries.”

Of course, there are often situations in which domestic conditions,

both legal and political, do interfere with a state’s ability or willingness

to arrest and prosecute particular offenders, and historically more than

one state has been moved to utilize “alternatives” to extradition —th at

is, to use extra-legal mea ns to obtain custody over the offender. Section

C, below in this chapter, deals w ith the age-old practice of abduction

of fugitives, as well as t he more recent and controversial practice of

“extraordinary rendition.” Another problem area is the uneasy inter-

action between modes of criminal cooperation between state s and the

human rights obligations which bind states under both treaties and

customary inter national law. The discourse on this are a, once referred

to as academ ically “f ashionable,”2 increasingly ha s become a source of

friction between prosecutori al authorit ies, cr imina l defence law yers,

and state governments, and shows no sign of becomi ng less so. Ac-

cordingly, these issues deser ve their own discrete di scussion and are

canvass ed in Chapter 10.

This chapter and the next, then, deal not with trials of cr iminals

nor the substantive law regardi ng the crimes they commit, but rath-

er with important procedural mechanisms used by states to facilitate

crime suppression. The subject matter is not truly inter national crim-

inal law (ICL) or even transnational cr iminal law (TCL), but really a

species of transn ational crimin al procedure. However, the expansion

of both ICL and TCL during the last centur y has signif‌icantly increa sed

the importance of this kind of machinery, and it would be inappro-

priate not to deal with them in some way in this text. Accordingly,

the subject matter will be referred to simply as “international cr iminal

cooperation.”

1 [1989] 1 SCR 1469 at 1485 [Cotroni].

2 Christi ne van den Wyngaert, “Applying the Europe an Convention on Human

Rights to Ex tradition: Opening Pa ndora’s Box?” (1990) 39 ICLQ 757 at 757.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW478

B. EXT R ADITION

1) International Law

a) History

Extradition is t he formal rendition of a criminal fugitive from a state

that has custody (the requested state) to a state that w ishes either to

prosecute or, if the fugitive has already been conv icted of an offence, to

impose a penal sentence (the requesting state). Other (usually immigra-

tion-based) means of removing i ndividuals from states, such as depor-

tation and expulsion, are gea red towards protecting domestic interests.3

Extradition, by contrast, is aimed at the facil itation of a foreign state’s

criminal process, and is thus a sovereign act of cooperation between

states. However, there is obviously a sense of mutual self-interest at

play among states that enter into extradition agreements, since facili-

tating the cri minal process es of other states serves general crime sup-

pression goals that benef‌it all. For situations in which extradit ion is

not available, some states have been known to re sort to what is often

called “irreg ular rendition,” for example, abduction or extraordinar y

rendition,4 which can have deleterious effects on inter-state relations.

Extradition is thus far preferable, and is in fact one of the oldest forms

of inter-state cooperation (criminal or otherwi se), extradition-type ar-

rangements being traceable back to ancient Egy pt.5

International law writers as far back as Grotius have mused about

the desirability of a solid inter national law rule requiring states to

extradite fugitives to face foreign criminal proceedings.6 However, it

may safely be stated th at there is no general duty under customa ry

international law to surrender fugitives to other states.7 Accordingly

3 The practice of using im migration devices to depor t individuals to states whe re

they face cri minal proceedings in or der to subvert the more stringent ex tradi-

tion laws is oft en referred to as “disguis ed extradition”; see Re Shepherd and

Minister of Employment a nd Immigration (1989), 70 OR (2d) 765 (CA).

4 These practices a re dealt with in Section C, be low in this chapter.

5 Ivan A Shearer, Extraditio n in International Law (Dobbs Fer ry, NY: Oceana Pub-

lications, 1971) at 5.

6 This is the origin of t he maxim aut dedere aut judicare (“extra dite or prosecute”);

see Hugo Grotius, De Jure Belli ac Pacis, Book II , Chapter XXI, paras III & IV,

trans by Fr ancis W. Kelsey (Washington, DC: Carneg ie Institution, 1925) at

526–29. See also M Cher if Bassiouni & Edward Wi se, Aut Dedere aut Judicare:

The Duty to Extrad ite or Prosecute in International L aw (Boston: Mart inus Nijhoff,

1995).

7United States of Amer ica v McVey (1992), 77 CCC (3d) 1 at 6–7 (SCC) [McVey];

United States of Amer ica v Allard (1991), 64 CCC (3d) 159 at 162 (SCC). There