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.”

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

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