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Criminal law is particular to each state. What is unlawful in one state may well be lawful in another. Even when the same actions are criminal in two states, the specific elements of the crime may well differ. Jurisdiction to prosecute a crime is principally based on that crime having occurred within the territory of the state seeking to try the alleged offender. In addressing offenses against individuals or property, such restrictions pose few if any problems. Nevertheless, for centuries states have had to respond when an alleged offender has committed a crime in one state and then fled to another. The law of extradition provides the traditional solution. Extradition is the legal method by which one state surrenders an alleged offender to another state so that the latter can prosecute him or her. It is a discreet and specialized area of law that needs to be explored in a general context before looking at the aspects specific to those accused of genocide or crimes against humanity.

Extradition is more than a method for removing undesirable persons from the territory of a state. Such removal for aliens can be accomplished through deportation, which allows the state to remove those deemed inimical to the public interest. The state has no interest in where a person goes after he or she is deported, although sometimes states use deportation as a form of disguised extradition. Extradition, in contrast to deportation, is based on an agreement between at least two states to surrender suspects to face prosecution. The destination of the individual is fundamental to the process. Furthermore, being based on an agreement between at least two states, it is their interests that determine the nature of the process; the individual concerned is simply an element, although not completely powerless, in that interstate agreement. Originally, extradition agreements were bilateral (meaning they existed between two states), so differences in practice can be found within international extradition law. Most common law states, that is, those with an Anglo-American tradition, for example, require a certain degree of evidence against the alleged fugitive offender, while states adopting the continental European model only look for a warrant, proof of identity, statement of the law, and a brief outline of the facts.

There are two matters that are intrinsic to extradition law. First, the agreement may be bilateral, multilateral, formal, informal, or ad hoc, but it is an interstate mechanism. Thus, surrender to some other entity, such as the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) or to the International Criminal Court (ICC), is not based on extradition but some other mechanism for surrendering the accused. Second, the state making a request must have jurisdiction to prosecute the alleged offender for the crimes that form the basis of the request. This second matter is called the requirement of double criminality and is found in nearly all extradition arrangements. Double criminality provides that extradition shall not take place unless the actions of the accused would constitute a crime within the jurisdiction of both the courts of both the requested and requesting states. The premise for the rule is that states should only surrender someone to another state for behavior that both of them have criminalized, recognizing that criminal law reflects the mores and customs of each state. Although the criminalization of genocide and crimes against humanity may be assumed to be universal, such an assumption needs to be examined in slightly closer detail. Genocide was very precisely defined in the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide in terms of actus reus (act or omission) and mens rea (mental element of the crime). Some states have adopted a broader definition in their domestic legislation, however, and it is only when some convergence exists that one could assume double criminality.

With respect to crimes against humanity, the situation is even less clear because there is, as yet, no universally accepted definition. This is not to suggest that acts commonly described as crimes against humanity would not be criminalized in most states; rather, double criminality is not based on the simple identity of terms. One should look to see if the activities listed in an extradition request are criminalized by the requested state. The difficult cases involve requests made by a state asserting a form of extraterritorial jurisdiction. Not only must the activity be criminalized by both states, but both states must be able to prosecute in regard to the extraterritorial elements of the crime—common law states have a much more restricted capacity to prosecute crimes that did not take place within their territory. Civil law states have jurisdiction over their own citizens for crimes committed anywhere in the world, as well as a much more developed understanding of crimes that threaten the state and universal jurisdiction. Moreover, several have adopted the "passive personality" principle giving a state jurisdiction when the victim is a citizen of the state. The consequence is that the requesting state may well have jurisdiction over acts criminalized in both states, but the requested state would lack jurisdiction because of an extraterritorial element to the crime based on the facts.

Genocide and Crimes Against Humanity

Genocide and crimes against humanity present some particular issues for extradition law. The Genocide Convention states in its Article VI:

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

On the basis of Article VI, until the establishment of the ICC, one could argue that only the territorial state had the authority to prosecute. Custom, however, provides that universal jurisdiction exists over genocide—see the International Court of Justice (ICJ) Advisory Opinion in the Reservations to the Genocide Convention case (1951) and Randall (1988).

Crimes against humanity are more problematic in a legal sense because no universally accepted definition exists. Even the statutes of the ad hoc international criminal tribunals and the ICC do not have uniform definitions. Article 5 of the statute for the International Tribunal for the former Yugoslavia requires that the crime occurred during an armed conflict, but persecution is simply a freestanding crime within crimes against humanity; Article 3 of the statute of the International Tribunal for Rwanda does not require there to be an armed conflict, but the crime has to be committed as part of a widespread or systematic attack and with a persecutory intent; the most recent definition of the crime in an international instrument, Article 7 of the Statute of the International Criminal Court, does not require an armed conflict, the crime, on the other hand, does have to be part of a widespread or systematic attack, but there is no need for persecutory intent, although persecution is a separate crime as long as it is associated with another crime within Articles 6, 7, or 8 of the Statute. The only element on which all definitions agree is that the crime has to be directed against a civilian population. Given such divergence, the requirement of double criminality in extradition law could be problematic if the requesting and requested states have adopted definitions of crimes against humanity from different statutes.

One might argue that crimes against humanity are subject to universal jurisdiction, rendering part of the double criminality requirement easier to satisfy. It is clear that some of the crimes listed as crimes against humanity, such as torture and possibly enslavement, if committed in the appropriate context (in an armed conflict or as part of a widespread or systematic attack) would be subject to permissive universal jurisdiction, but it has not been established that all crimes against humanity enumerated in the Rome Statute would provide domestic courts with the jurisdiction to prosecute, regardless of the place where the crime occurred or the nationality of the alleged perpetrator or victim. For instance, Article 7.1(i) lists the enforced disappearance of persons as one crime that could constitute a crime against humanity. Paragraph 2(i) of the same article provides as follows:

"Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

Although such actions ought to be criminalized, it is not certain that prior to 1998 enforced disappearance was recognized by states as a crime attracting universal jurisdiction, unless seen as a form of torture (see Sarma v. Sri Lanka, 2003, para. 9.5). Its adoption in the Rome Statute does not of itself accord such a status.

Defenses to Extradition

Extradition law includes a series of specific defenses that prohibit surrender and, additionally, international human rights law provides its own safeguards for alleged transnational fugitive offenders. These defenses have been interpreted by various domestic courts in different states, so while they are recognized as part of state practice in the field of extradition law, no uniform definition exists and they may indeed have been omitted from particular treaties and therefore be irrelevant with respect to a particular request.

Military Offenses

Although it might appear to be contrary to the fundamental objective of prosecuting those who commit genocide or other crimes against humanity to exempt from extradition those committing military offenses, extradition law has applied a very specific and limited definition to what constitutes an offense of a military character. It is not every offense committed by a member of the military forces that constitutes a military offense. To result in protection at an extradition hearing, the offense must be purely military in character, such as going absent without leave or refusing to perform military service.

Specialty

"Specialty" is peculiar to extradition law. It provides that the requesting state can only prosecute the transnational fugitive offender after surrender for the crimes stipulated in the request and for no others. Indeed, since extradition law also extends to requesting the return of a convicted fugitive, if a request fails to include previous convictions after the fugitive absconds, he or she cannot be reincarcerated for those convictions on surrender, so strong is the principle of specialty (R v. Uxbridge Justices, ex parte Davies, 1981). Although one might initially deduce that specialty has little to do with extradition in cases of genocide or crimes against humanity, the case of John Demjanjuk suggests that it could prove problematic in certain instances.

The Political Offense Exemption

The political offense exemption provides that surrender shall not take place when the offense is of a political character. The nonextradition of persons accused of political offenses might even be accepted as a norm of customary international law when it is not expressed in the international agreement between two states. However, Article VII of the Genocide Convention explicitly states that "genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition." Such clauses rejecting the political offense exemption are extremely rare in international treaties (see the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, the 1998 International Convention for the Suppression of Terrorist Bombings, and the 2000 International Convention for the Suppression of the Financing of Terrorism).

Although extradition law is part of international law, it is nevertheless implemented in domestic courts and therefore there is no one accepted definition of a political offense. Certain crimes are seen as purely political, such as treason, but ordinarily a political offense is a common crime whose political character predominates, such as murdering a tyrant with the intent of overthrowing the government. It is not sufficient that the crime was committed by a politically motivated offender. The exemption applies to offenses of a political character, not politically motivated offenders—on the other hand, the offender must have a political rather than a personal motive. Four main approaches have developed to the political offense exemption (with three being very similar), and, depending on which one is followed, crimes against humanity could be deemed as political, no matter how appalling that idea may seem.

The first approach is contained in the law of the United Kingdom. For an offense to be of a political character under this approach, it had to be part of, and in furtherance of, a political disturbance, and not too remote from the ultimate goal of an organization attempting to change the government or its policies. In addition, the request has to be made by the state that was the target of the fugitive offender's crime. Imagining crimes against humanity that would satisfy the remoteness element of that test is difficult: How could a crime against humanity be sufficiently proximate to overthrowing a government or changing its policies when it involves an "attack on a civilian population"? The Swiss approach, now also adopted in the United Kingdom, includes elements of the U.K. approach, but adds proportionality to its predominance test. Even if the crime would have been political under the traditional U.K. approach, if it were determined to be disproportionate, then the Swiss approach would find it to be nonpolitical:

Homicide, assassination and murder, is one of the most heinous crimes. It can only be justified where no other method exists of protecting the final rights or humanity (In re Pavan, 1928).

The Swiss test would deem crimes against humanity to be nonpolitical as they are disproportionate. The third approach may be found in the decisions of the Irish courts. They have followed the Swiss approach since 1982:

The offenses set forth in the two warrants . . . cannot be regarded as political offenses . . . as they contemplate and involve indiscriminate violence and can be correctly characterized as terrorism (Ellis v. O'Dea [No. 2], 1991).

In addition, the Irish courts demand that the crime not threaten the democratic nature of the requested state. If the transnational fugitive offender is as much of a threat to the requested state as he or she was to the requesting state, then the alleged offender forfeits the protection of the political offense exemption.

The final approach derives from U.S. court decisions. The basic test is that an offense will be deemed political if it is part of, or in furtherance of, a political uprising. Although an uprising requires a greater degree of violence and instability than a disturbance, an offense which is part of that uprising is prima facie political—there is no requirement of proximity to the ultimate goal or proportionality. As such, crimes against humanity might be deemed political. In the Artukovic case the breadth of the U.S. approach was made apparent. Yugoslavia requested the extradition of Andrija Artukovic in 1956 with respect to war crimes. He had served as Minister of the Interior under the Axis-controlled Croatian government of World War II. In that position he had allegedly ordered the death of 1,293 named individuals and approximately 30,000 unidentified persons. The District Court for the Southern District of California held that these were political offenses because they had been committed in a political uprising, namely the power struggle that occurred in Croatia during World War II. The U.S. Court of Appeals for the Ninth Circuit upheld the district court's refusal to extradite Artukovic to Yugoslavia, rejecting the asserted principle that war crimes were automatically nonpolitical.

Even if one accepts that stance by the U.S. courts, it is difficult to see how the murder of 30,000 people, principally civilians, could be part of, or incidental to, a political uprising. The Supreme Court vacated the Court of Appeals decision and remanded the case to the District Court. The District Court in its second attempt at interpreting existing law again decided to refuse extradition, partly because of lack of evidence. However, it did find that the offenses alleged were of a political character as well. The 1959 decision in the series of Artukovic cases would seem to be a most disturbing misinterpretation of the exemption. Not only should war crimes and, by analogy, crimes against humanity be excluded from the ambit of political offenses like genocide, but the offenses charged here were of a type and nature that the scope of the accepted political incidence test might be stretched beyond rational limits. Artukovic was eventually extradited, but only in 1986 after the Court of Appeals for the Ninth Circuit recognized the error of the earlier 1959 decision.

A sounder approach to crimes against humanity and the political offense exemption may be seen in the reasoning of Kroeger v. The Swiss Federal Prosecutor's Office (1966):

The offense must have been committed in the course of a struggle for power in the State and must also be in appropriate proportion to the object pursued, in other words suitable to the attainment of that object. The extinction of human life, one of the most reprehensible crimes, can only appear excusable if it constitutes a last resort in the pursuit of a political objective. On the facts, . . . such a situation does not come into question. The accused was acting at a time when the nationalist socialist regime stood at the pinnacle of its power. He acted against helpless women, children and sick persons who could not possibly have threatened German dominion.

In the words of the Argentinian Supreme Court:

Extradition will not be denied on grounds of the political or military character of the charges where we are dealing with cruel or immoral acts which clearly shock the conscience of civilized people (In re Bohne, 1968).

Although the political offense exemption is fundamental to extradition law, the UN Genocide Convention excludes it in relation to Article III crimes and crimes against humanity are non-political by their very nature.

Death Penalty

When the state requesting extradition retains the death penalty for crimes that the requested state does not apply capital punishment to, then most modern extradition treaties provide that the latter shall seek assurances from the former that it will not impose the death penalty on the transnational fugitive offender if he or she is surrendered. Although such a rule is not customary international law at this time, death penalty clauses are becoming more prevalent in extradition arrangements. States that have ratified the second optional protocol to the International Covenant on Civil and Political Rights (ICCPR), other abolitionist states that are parties to the ICCPR, and states party to Protocol 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) cannot extradite without gaining such assurances from the requesting state (Judge v. Canada, 2003; Soering v. United Kingdom, 1989). In addition, returning someone to face the death penalty may, in certain cases, amount to torture, inhuman or degrading treatment, or punishment contrary to Article 3 of the United Nations Convention Against Torture 1984 (torture only) or the ECHR's Article 3.

Nationality

Given that most recent examples of genocide and crimes against humanity have occurred in noninternational armed conflicts, the rules in extradition law pertaining to nationals ought to have little impact. Most civil law states will not extradite their nationals. By way of corollary, they assert jurisdiction over crimes committed by their nationals anywhere in the world. Furthermore, their rules of evidence in criminal trials more readily permit the admission of documentary evidence so witnesses to genocide or crimes against humanity do not have to appear at the trial in person. Nevertheless, if a trial for genocide or crimes against humanity is seen as a form of postconflict justice, allowing a previously divided state to face up to gross human rights violations of the past, then a remote trial in a third state may not satisfy that objective.

Immunity

Extradition law does recognize immunity as a defense, as is clear from the Pinochet cases. Former heads of state and their equivalents, however, ought not to have immunity for genocide or crimes against humanity committed during their terms of office, although it is not as simple as saying that they cannot have immunity for any criminal acts perpetrated during that time. In Pinochet No. 3 (1999), the English House of Lords held that former Chilean President Augusto Pinochet's immunity for torture committed while he was head of state ceased on the date that Spain, the United Kingdom, and Chile (respectively, the requesting state, the requested state, and the state where the crimes occurred) became parties to the 1984 UN Torture Convention. By analogy Article IV of the Genocide Convention stipulates no immunity for former heads of state for Article III crimes committed during their tenure in office. No equivalent provision exists for crimes against humanity, but given that they have been accepted as international crimes since the Nuremberg tribunals, the reasoning of Pinochet 3 is that former heads of state do not enjoy immunity.

Existing heads of state and their equivalents, on the other hand, receive a much broader immunity, even for serious international crimes. In Congo v. Belgium (2002), the ICJ held that domestic courts had no jurisdiction to prosecute under principles of universal jurisdiction acting high officials (in this case the Congolese foreign minister). While Article IV of the Genocide Convention holds that even "constitutionally responsible rulers" shall be punished, this directive has to be interpreted in light of Article VI, which gives jurisdiction to the territorial state and an international penal tribunal. The ICJ accepted the notion that an international tribunal could prosecute an acting head of state.

Irregular or de facto Extradition

As can be seen, there are a variety of reasons why an extradition request may fail, if one assumes that the request has been properly made in the first place. Given the desire to bring persons accused of genocide or crimes against humanity to trial, irregular methods have been used to obtain jurisdiction: "collusive" deportation and abduction. When extradition would be impossible because an international agreement does not exist between the requesting and requested states and there is no option of trying a transnational fugitive offender before an international tribunal or a domestic court on the basis of universal jurisdiction, then alternative methods of surrendering the accused, with due regard for his or her human rights, may be justified. However, given the existence of the ICC and the burgeoning acceptance of universal jurisdiction as well as the seriousness of genocide and crimes against humanity, one might hope that such alternative methods will need to be used rarely.

Collusive deportation involves the prosecuting state and the state where the transnational fugitive offender is seeking refuge. The latter uses its power to deport aliens in order to return the transnational fugitive offender to the state seeking to prosecute him or her. As such, a legal process is initiated. Nevertheless, following the decision of the European Court of Human Rights in Bozano v. France (1986), Council of Europe (CoE) member states should not deport a transnational fugitive offender, with extradition being the appropriate means of surrendering that individual to the requesting state. The opposite perspective emerged when Bolivia expelled Klaus Barbie (the former Nazi referred to as the "Butcher of Lyon") to France to face trial for crimes against humanity. Barbie's legal team alleged that France violated international law in obtaining jurisdiction through expulsion rather than extradition. The French high court, the Cour de Cassation, held that:

"All necessary measures" are to be taken by the Member States of the United Nations to ensure that war crimes, crimes against peace and crimes against humanity are punished and that those persons suspected of being responsible for such crimes are sent back "to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those countries.

The English House of Lords, on the other hand, has divested itself of jurisdiction with respect to the return of a transnational fugitive offender to face charges for financial crimes when extradition would have been possible. Canadian, South African, and Zimbabwean courts have decided similarly. However, the First Section of the European Court of Human Rights was prepared to sanction collusive deportation in Ócalan v. Turkey (2003). Abdullah Ócalan was the leader of the Workers Party of Kurdistan (PKK), a Kurdish separatist group. Turkish authorities took him into custody at Nairobi Airport with the collusion of Kenyan authorities. Given that there was no extradition treaty between the two states, the European Court of Human Rights was prepared to hold that the detention was lawful under Article 5.1 of the ECHR. The decision of the First Section raises many questions, the most fundamental of which relates to its function. Domestic courts deciding whether they should divest themselves of jurisdiction to prosecute need to take into account the availability of extradition, but the European Court of Human Rights ought to focus on the rights of the applicant, particularly those relating to the lawful deprivation of liberty—if bundling Lorenzo Bozano across the Swiss border on his way to Italy was contrary to Article 5.1, accepting Ôcalan after he had been whisked onto a waiting plane by Kenyan authorities must also be unlawful. The situation might have been different if Kenyan authorities had used their ordinary laws relating to deportation with a right to judicial review.

If collusive deportation raises questions of legality, abduction from a third state, violating the latter's sovereign status, should never be adopted—it is, in the words of Ivan Shearer, "manifestly extra-legal" (1971, p. 75). The leading authority in this area is Eichmann (1960). Former Nazi Adolf Eichmann was abducted from Argentina by agents acting for Israel. He was tried and convicted, but only after the UN Security Council addressed the violation of Argentina's sovereignty. Nevertheless, the ICTY later determined that it would prosecute an individual snatched by Nato troops from Bosnia and Herzegovina (Prosecutor v. Dragan Nikolic, 2003, para. 33).

Duty to Prosecute and Universal Jurisdiction

Grave breaches of the Geneva Conventions for the protection of victims of war and the First Additional Protocol relating to international armed conflicts impose a duty on all signatories to investigate and prosecute. Extradition is a secondary response. Mandatory universal jurisdiction, however, is limited to grave breaches. All other crimes, including genocide and crimes against humanity, have, at best, permissive universal jurisdiction, except when the alleged genocide or crimes against humanity also qualify as grave breaches—there is a degree of overlap in the appropriate circumstances. Nevertheless, even though no mandatory universal jurisdiction exists, a duty to prosecute does arise when an alleged offender is found in the territory of the state and is not extradited—aut dedere, aut judicare, that is, the state must either surrender the fugitive to another state with jurisdiction or prosecute him or her itself (Bassiouni and Wise, 1995). Article V of the Genocide Convention provides as follows:

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Although it might be argued that Article V should be read in conjunction with Article VI, only requiring states to enact legislation to prosecute individuals for genocide committed within the territory of that state, customary international law gives states universal jurisdiction over genocide, particularly since Article IV stipulates that persons committing genocide shall be punished.

As for crimes against humanity, one again has to rely on customary international law that, as might be expected, is not expounded in a single document. Nevertheless, the writings of scholars and the decisions of several international tribunals suggest that if evidence exists that a person has committed crimes against humanity and this person is found within the territory of a state, that state would have a duty to prosecute if it does not extradite the alleged offender to the state where the crimes against humanity occurred.

The ICC and Rendition

The ICC was established by means of an interstate treaty. As such, the rules about surrender are laid down in the 1998 Rome Statute (Part 9, Articles 86–102). Although the Statute provides the framework, individual states party will establish their own mechanisms for surrender (Article 88); states that are not party to the Statute can agree to surrender on an ad hoc basis. Such systems will be similar to the extradition process, but noticeable differences will exist. Extradition is based on a request by a coequal sovereign state, whereas surrender to the ICC will follow a request made by the Office of the Prosecutor. It will, however, be much like an extradition request under the extradition law of the requested state (Article 91): proof of identity and evidence of location; a copy of the arrest warrant; and

Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.

The Rome Statute foresees only three reasons why a requested state that is a state party might refuse surrender: ne bis in idem (double jeopardy, Article 20); a competing request from another state (Article 90); and a contrary obligation under international law (Article 98). It is the latter ground that is giving rise to controversy. Article 27 provides that official capacity, even as a head of state, is not a defense to any of the Article 5 crimes. Article 98, however, provides:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The interplay of the two articles is complex, but one likely interpretation is that Article 98 protects those with immunity, with the immunity stemming from a nonstate party. A person with immunity from a state party to the Rome Statute cannot rely on Article 98—ratification of the statute gives rise to a waiver not only with respect to the ICC, but also in relation to all other states party (Akande, 2003).

SEE ALSO International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Prosecution; Universal Jurisdiction

Geoff Gilbert