International Criminal Cooperation

• Author: Joseph Rikhof/Robert J Currie
• Pages: 529-586

529

CHA PTER 9

INTERNATIONAL

CRIMINAL

COOPER ATION

A. INTRODUC TION

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 a s “mutual assistance.” Because “mutual legal as sistance,”

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

become a term of art, the approach here wil l be to eschew the older

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

Extradition and mutual legal a ssistance between states are neces-

sary becaus e of the overarching legal underpinni ng 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 cr iminal cooperation for dealing w ith these limits was

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

America v Cotroni:

The investigation, prosecut ion and suppression of crime for the pro-

tection of the citize n and the maintena nce of peace and public order

is an importa nt goal of all organized so cieties. 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 ca se, but it is increasing ly evident today. Modern

communications have sh runk the world and made McLuh an’s global

village a rea lity. The only respect paid by the inter national crim inal

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 importa nt criminal enforce-

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

prosecution are confounded by “national boundar ies.”

Of course, there are often situations in wh ich domestic conditions,

both legal and political, do interfere w ith a state’s ability or willingne ss

to arrest and prosecute par ticular offenders, and historica lly more than

one state has been moved to utilize “alter natives” to extradition — th at is,

to use extra-legal mean s 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 “extra-

ordinary rendition.” Another problem area is the uneas y interaction

between modes of crimi nal cooperation between states and t he human

rights obligations that bind st ates under both treaties and cu stomary

international law. The discourse on thi s area, once referred to as aca-

demically “fashionable,”2 increasingly h as become a source of friction

between prosecutorial authorities, criminal defence law yers, and state

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

issues deser ve their own discrete di scussion 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 mecha nisms used by state s to facilitate crime

suppression. The subject matter is not truly international criminal law

(ICL) or even transnational crimin al law (TCL), but really a species of

transnational criminal procedure. However, the expan sion of both ICL

and TCL during the last centur y has signif‌icantly increased the import-

ance of this kind of mach inery, and it would be inappropriate not to

deal with it in some way in th is text. Accordingly, the subject matter

will be referred to si mply as “international cri minal 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 Cooperation 531

B. E XT R A DIT ION

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 indiv iduals from states, such as deportation and

expulsion, are geared toward s 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 ext radition agreements, since facilitating the crim-

inal processe s of other states serve s general crime suppression goals that

benef‌it all. For situations in which extr adition is not available, some

states have been known to re sort to what is often called “ir regular ren-

dition,” for exa mple, abduction or extraord inar 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 otherwise), extradition-ty pe arrangements being t raceable

back to ancient Egypt.5

International law w riters as far back as Grotius h ave mused about

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

extradite fugitive s to face foreign criminal proceedings.6 However, it is

safe to say that there is no general duty under customary internat ional

law to surrender fugitives to other states.7 Accordingly e xtradit ion

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