International Criminal Cooperation

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 445-496

445

CHA PTER 9

INTERNATIONAL

CRIMINAL

COOPER ATION

A. INTRODUCTION

This chapter deals with the primary mechanisms 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 discussed in Sections B and D respectively. There is a tendency

in older and even contemporary caselaw to refer to all such cooperative

mechanisms as “mutual assistance.” Because “mutual legal assistance,”

meaning the treat y-based transmission of evidence between states, has

become a term of art, the approach here w ill be to eschew the older

practice and call each mode of cooperation by its u sual name.

Extradition and mutua l legal assistance between states are nece s-

sary because of the overarching legal underpinning of all international

and transnational cr iminal law: the terr itorial sovereignty of states and

the lim its on the exerci se of enforcement jurisd iction by crimina l au-

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

of international criminal cooperation for dealing with these li mits was

expressed by La Forest J. in a n oft-cited passage f rom United States of

America v. Cotroni:

The investigation, prose cution and suppres sion of crime for t he pro-

tection of the cit izen and t he maintena nce of peace and public order

is an important goal of all orga nized societies. The pursuit of t hat

goal cannot realistic ally be conf‌ined within nation al boundaries.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW446

That has long been the case, but it is increasingly evident today. Mod-

ern communications have shr unk the world and made McLuhan’s

global village a reality. The only respect paid by the international

crimin al community to national bound aries is when these ca n serve

as a means to frust rate the efforts of law enforcement and judicial

authorities.1

Accordingly, states have been moved by common intere st to enter into

agreements whereby e ach could do the important crimina l enforce-

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

prosecution was confounded by “national boundar ies.”

Of course, there are often situations where sovereignty concerns

do interfere with a state’s ability or willingness to arre st and prosecute

particular offenders, and historically more than one state has been

moved to utilize “alternatives” to extradition — that is, to use extr a-

legal means to obtain custody over t he offender. Section C, below i n

this chapter, deals with the age-old practice of abduction of fugitives,

as well as the more recent and controversial practice of “extraordin-

ary rendition.” Another problem area is the uneasy interaction be-

tween modes of criminal cooperation between states and the human

rights obligations which bind states under both treaties and custom-

ary international law. The discourse on th is area, once referred to as

academically “fashionable,”2 increasingly has become a source of fric-

tion between prosecutorial authorities, criminal defence lawyers, and

state governments, and shows no sign of becoming less so. Accordingly,

these issues deserve their own discrete discussion and are canvassed

in Chapter 10.

This chapter and the next, then, deal not with trials of criminal s nor

the substantive law rega rding the crimes they commit, but rather with

important procedural mechanism s used by states to facilitate crime

suppression. The subject matter is not truly inter national criminal law

(ICL) or even transnational c riminal law (TCL), but really a species of

transnationa l crimina l procedure. However, the expansion of both ICL

and TCL during the last century has signif‌icantly increased the import-

ance of this kind of machinery, and it would be in appropriate not to

deal with t hem in some way in t his text. Accordi ngly, the subject mat-

ter will be referred to si mply as “international criminal cooperation.”

1 [1989] 1 S.C.R. 1469 at 1485.

2 Christ ine van den Wyngaert, “Applying the Europ ean Convention on Human

Rights to Ex tradition: Opening Pand ora’s Box?” (1990) 39 I.C.L.Q. 757 at 757.

Internation al Criminal Coope ration 447

B. EXTR ADITION

1) International Law

a) History

Extradition is the formal rendition of a criminal fugitive from a state

that has custody (the requested state) to a state t hat wishes either to

prosecute or, i f the fugitive has already been convicted of an offence,

to impose a penal sentence (the requesti ng st ate). Ot her (usually im-

migration-based) means of removing indiv iduals from states, such as

deportation and expulsion, are geared towards protecting domestic in-

terests.3 Extrad ition, by contrast, is aimed at the facilitation of a foreign

state’s crimin al process, and is thus a s overeign act of cooperation be-

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

at play among states which enter into extradition agreements, since

facilitating the cri minal processes of other states serves general crime

suppression goals that benef‌it a ll. For situations in which extradition

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

called “irregular rendition,” for example, abduction or extraordina ry

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

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

of inter-state cooperation (criminal or otherwise), extrad ition-type ar-

rangements being traceable back to ancient Egypt.5

International l aw writers as fa r back as Grotius have mused about

the desirability of a solid international law rule requiring states to

extradite fugitives to face foreign crimin al proceedings.6 However, it

may safely be stated that there is no general duty under customary

international law to surrender fugitives to other st ates.7 Accordi ngly

3 The practice of using i mmigration devices to de port individuals to st ates where

they face cri minal proceedings i n order to subvert the more stringent e xtradi-

tion laws is ofte n referred to as “disguise d extradition”; see Re Shepherd and

Minister of Employmen t and Immigration (1989), 70 O.R. (2d) 765 (C.A.).

4 These practice s are dealt with in Section C , below in this chapter.

5 Ivan A. Shearer, Ext radition in International L aw (Dobbs Ferry, NY: Oceana Pub-

lications, 1971) at 5.

6 This is the or igin of the maxim aut de dere aut judicare (“extradite or prosecute”);

see Hugo Grotius, De Iure Belli Ac Pacis, Book II, Ch apter 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 W ise, Aut Dedere Aut Judi-

care: The Duty to E xtradite or Prosecute in Internati onal Law (Boston: Marti nus

Nijhoff, 1995).

7 United States of Amer ica v. McVey (1992), 77 C.C.C. (3d) 1 at 6–7 (S.C.C.); United

States of Americ a v. Allard (1991), 64 C.C.C. (3d) 159 at 162 (S.C.C.). There are