International Criminal Cooperation
Author | Joseph Rikhof/Robert J Currie |
Pages | 529-586 |
529
CHAPTER 9
INTERNATIONAL
CRIMINAL
COOPER ATION
A. INTRODUCTION
This chapter deals w ith the primary mecha nisms that states use to a ssist
each other in the prosecution of crim inal offenders. Those mechanisms
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 treaty-based transmission of evidence between states, has
become a term of art, the approach here will be to eschew the older
practice and call each mode of cooperation by its usual name.
Extradition and mutual legal assistance between states are neces-
sary because of the overarching legal underpinning of all international
and transnat ional crim inal law: the territorial sovereignt y of states and
the limits on the exerci se of enforcement jurisdiction by cr iminal author-
ities (for more on this, see Chapter 1, Section D). The importance of
international criminal cooperation for dealing with these limits was
expressed by La Forest J in an oft-cited passage from United States of
America v Cotroni:
The investigation, prosecution and suppression of crime for the pro-
tection of the citizen and the maintenance of peace and public order
is an important goal of all organized societies. The pursuit of that
goal cannot real istically be confined w ithin national boundar ies. That
INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW530
has long been the case, but it is increasingly evident today. Modern
communications have shrunk the world and made McLuhan’s global
village a reality. The only respect paid by the international criminal
community to nation al boundaries is when the se can serve as a mean s
to frustrate t he efforts of law enforcement and judicial authorit ies.1
Accordingly, states have been moved by common interest to enter into
agreements whereby each could do the important criminal 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 “alter natives” to extradition — th at is,
to use extra-legal means to obtain custody over the offender. Section C,
below in this chapter, deals with the age-old practice of abduction of
fugitives, as well as the more recent and controversial practice of “extra-
ordinary rendition.” Another problem area is the uneasy interaction
between modes of criminal cooperation between states and the human
rights obligations that bind states under both treaties and customary
international law. The discourse on this area, once referred to as aca-
demically “fashionable,”2 increasingly has become a source of friction
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 Chap-
ter 10.
This chapter and the next, t hen, deal not with trials of cri minals nor
the substantive law regarding the crimes they commit, but rather with
important procedural mechanisms used by states to facilitate crime
suppression. The subject matter is not truly international criminal law
(ICL) or even transnational criminal law (TCL), but really a species of
transnational criminal procedure. However, the expansion of both ICL
and TCL during the last centur y has significantly increased the import-
ance of this kind of machinery, and it would be inappropriate not to
deal with it in some way in this text. Accordingly, the subject matter
will be referred to simply as “international criminal cooperation.”
2 Christ ine van den Wyngaert, “Applying the Europe an Convention on Human
Rights to Ex tradition: Opening Pandor a’s Box?” (1990) 39 ICLQ 757 at 757.
International Criminal Cooperation531
B. EXTRADITION
1) International Law
a) History
Extradition is t he formal rendition of a crim inal fugitive from a state that
has custody (the requested state) to a state that wishes eit her to prosecute
or, if the fugitive has already been convicted of an offence, to enforce a
penal sentence (the requesting state). Other (usually immigration- ba sed)
means of removing individuals from states, such as deportation and
expulsion, are geared towards protecting domestic interests.3 Extradi-
tion, by contrast, is aimed at the facilitation of a foreign state’s crim-
inal 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 facilitating the crim-
inal processe s of other states serve s general crime suppression goals that
benefit all. For situations in which extradition is not available, some
states have been known to resort to what is often called “irregular ren-
dition,” for example, abduction or extraordinary 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 otherwise), extradition-type arrangements being traceable
back to ancient Egypt.5
International law writers as far back as Grotius have mused about
the desirability of a solid international law rule requiring states to
extradite fugitives to face foreign criminal proceedings.6 However, it is
safe to say that there is no general duty under customary international
law to surrender fugitives to other states.7 Accordingly extradition
3 The practice of using i mmigration devices to dep ort individuals to state s where
they face cri minal proceedings i n order to subvert the more stringent e xtra-
dition laws is of ten referred to as “disguis ed extradition”; see Re Shepherd and
Minister of Employmen t and Immigration (1989), 70 OR (2d) 765 (CA).
4 These practices a re dealt with in Section C, b elow 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 (“extradite or pros ecute”);
see Hugo Grotius, De Jure Belli ac Pacis, Book II, Ch apter XXI, paras III & IV,
trans Fra ncis W Kelsey (Washington, DC: Ca rnegie Institution, 1925) at 526–29.
See also M Cher if Bassiouni & Edward W ise, Aut Dedere aut Judicare: The Duty
to Extradite or Prosecut e in International Law (Bos ton: Martinus Nijhoff, 1995).
7 United 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 are
two possible exce ptions. The first is the obligation to e xtradite war cri minals
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