Section C. Extradition of own nationals
Extradition Treaty between Peru and France
Article 1 of the 1874 Extradition Treaty between Peru and France provides:
The Government of the French Republic and the Government of the Republic of Peru undertake by the present Convention, to surrender to each other persons taken refuge in France and in the French colonies from Peru, and taken refuge in Peru from France and the French colonies, with the exception of their own nationals, who are charged or have been convicted as perpetrators or accomplices, by the competent courts for the offences listed in section 2 below.
If the extradition of the person sought is not possible because of his nationality, the Government of the country where the crime was committed will facilitate the communication of all the available evidence to the proceedings that may be initiated at the country of origin.
The extradition request must always be made through diplomatic channels.
Extradition Treaty between Argentina and Spain
Articles 1 and 3 of the 1881 Extradition Treaty between Argentina and Spain provides:
Article 1. The Government of Argentina and the Government of Spain agree by this Treaty to the reciprocal surrender of individuals taken refuge from one of the two countries in the other, who were convicted or indicted by the competent courts, as perpetrators or accomplices of the crimes listed in the following article.
Article 3. The extradition obligation does not extend under any circumstances to nationals of the two countries. However, the High Contracting Parties undertake to prosecute and indict, according to the law, their respective nationals who commit offences against the laws of one of the two States, after the State Government whose laws have been violated submits a formal request by diplomatic or consular means, if those violations can be classified in a category referred to in article 2. The application shall be accompanied by objects, records, documents and other necessary information, proceeding as if the claimant country authorities had to qualify the crime themselves. In such a case, records and documents will be made free, but prosecution is not to be initiated in the courts of the country of the nationals of the High Contracting Parties, if he has been indicted and tried for the same crime in the territory where the incident occurred, although he has been acquitted.
Extradition Treaty between Argentina and Belgium
Articles 1, 3 and 4 of the 1886 Extradition Treaty between Argentina and Belgium provides:
Article 1. The Government of Argentina and the Belgian Government agree to the mutual surrender of individuals prosecuted, charged or convicted as perpetrators or accomplices to the crimes or offences set forth in Article 2 and who are refugees in the other State.
Article 3. Extradition shall not take place: 1. When the person sought is a citizen by birth or naturalization.
Article 4. In cases where, according to the provisions of this Treaty, extradition should not be agreed, the person sought shall be tried, if appropriate, by the courts of the requested country in accordance with its laws, and this country shall communicate the final decision to the requesting Government.
Extradition Treaty between Argentina and the United Kingdom
Articles 1 and 3 of the 1889 Extradition Treaty between Argentina and the United Kingdom provides:
Article 1. – The High Contracting Parties agree to surrender to each other in the circumstances and conditions set forth in this Treaty, persons who are accused or convicted of any crime or crimes listed in Article II, committed in the territory of the other State.
Article 3. – Each of the two High Contracting Parties reserves the right to deny or grant the request of his own subjects or citizens.
Montevideo Treaty on International Criminal Law
Under Article 20 of the 1889 Montevideo Treaty on International Criminal Law concluded between Argentina, Bolivia, Paraguay and Uruguay, extradition is granted regardless of the nationality of the person for whom it is requested.
Extradition Treaty between Argentina and the Netherlands
Articles 1, 3 and 7 of the 1893 Extradition Treaty between Argentina and the Netherlands provides:
Article 1. The High Contracting Parties agree, under the conditions set forth in this Treaty, to the mutual surrender of individuals prosecuted, or convicted of any of the crimes listed in Article 2 and who have taken refuge in the other State.
Article 3. Extradition shall not take place: 1. When the person sought is a citizen by birth or naturalization.
Article 7. In cases where, according to the provisions of this Treaty, extradition should not be agreed, the person sought shall be tried, if appropriate, by the courts of the requested country in accordance with its laws and this country shall communicate the final decision to the requesting Government.
Extradition Treaty between Peru and the United Kingdom
Articles I and III of the 1904 Extradition Treaty between Peru and the United Kingdom provides:
Article I. The high contracting parties mutually agree to surrender, in accordance with the provisions of this treaty, all those persons who are accused or convicted in one of the two countries, of one or more offences specified in the following article, found in the territory of the other.
Article III. Each of the High Contracting Parties reserves the right to grant or deny the delivery of their own subjects or citizens.
Extradition Treaty between Brazil and Peru
Article 1 of the 1919 Extradition Treaty between Brazil and Peru provides: “The High Contracting Parties are obliged to reciprocally hand over criminals of whatever nationality, including their own nationals.”
Treaty of Versailles
Article 228 of the 1919 Treaty of Versailles provides:
The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities.
In the end, however, the German Government refused to extradite its nationals. Instead, prosecutions were instituted before the court of Leipzig.
Article 345 of the 1928 Bustamante Code – a convention on private international law concluded between 21 States of South, Central and North America – provides: “The States parties are not obliged to extradite their own nationals.” However, the same provision states that a State which refuses to extradite is obliged to try the individual.
Extradition Treaty between Peru and Chile
Articles 1 and 4 of the 1932 Extradition Treaty between Peru and Chile provides:
Article 1. The High Contracting Parties mutually agree to surrender criminals of any nationality, who have taken refuge in their territories or in transit through them, provided that the requesting country has jurisdiction to hear and decide the offence for which the request is made.
Article 4. The High Contracting Parties agree that it is not required to extradite its own nationals. In this case, the petitioned government must provide the criminal prosecution requested, under its own criminal law, as if the offence had been perpetrated in its own territory. The decision or final resolution of the case to rule, shall be communicated to the Government who required the extradition.
Inter-American Convention on Extradition
Article 7(1) of the 1933 Inter-American Convention on Extradition provides: “The nationality of the person sought may not be invoked as a ground for denying extradition, except when the law of the requested State otherwise provides.”
European Convention on Extradition
Article 6(1)(a) of the 1957 European Convention on Extradition provides: “A Contracting Party shall have the right to refuse extradition of its nationals.” However, Article 6(2) provides: “If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate.”
Extradition Treaty between Argentina and the United States of America
Articles 1 and 3 of the 1972 Extradition Treaty between Argentina and the United States of America provides:
Article 1. The parties agree to extradite on a reciprocal basis, under the provisions of this Treaty, persons whom the authorities of the Requesting State have charged or convicted of an extraditable offence.
Article 3. The extradition and surrender of the person sought shall not be refused on the ground that he or she is a national of the Requested Party.
Extradition Treaty between Uruguay and the United States
Article 4 of the 1973 Extradition Treaty between Uruguay and the United States provides: “The Requested Party will not refuse the request for extradition on the ground that the person is a national of the Requested Party.”
OAU Convention against Mercenarism
Article 7 of the 1977 OAU Convention against Mercenarism provides:
2. When a national is the subject of the request for extradition, the State from which it is sought must, if it refuses, undertake prosecution of the offence committed.
3. If, in accordance with sections 1 and 2 of this Article, prosecution is undertaken, the State from which extradition is sought will notify the outcome of such prosecution to the state seeking extradition and to any other interested Member State of the Organization of African Unity.
Extradition Treaty between Argentina and Italy
Articles 1 and 4 of the 1987 Extradition Treaty between Argentina and Italy provides:
ARTICLE 1. Each Party undertakes to deliver to the other party, according to the rules and in conformity with the conditions provided for in this Treaty, persons that are in its territory and which are subject to criminal proceedings or are wanted for the execution of a sentence or of a security measure by the judicial authority of the other Party.…
ARTICLE 4. Each Party may refuse extradition of its own national. It shall be taken into account the nationality of the person sought at the time of the decision on the extradition request. In the case of refusal of extradition, the requested Party is obliged, at the demand of the Requesting Party, to submit the case to the competent authorities to open a possible criminal trial. To this end, the requesting Party shall provide procedural documentation and any other useful information in its possession.
The requested Party shall promptly communicate the outcome of the procedure.
Extradition Treaty between Argentina and Australia
Articles 1 and 3(2) of the 1988 Extradition Treaty between Argentina and Australia provides:
Article 1. Each Contracting Party undertakes to deliver to the other, according to the provisions of this Treaty, any person sought to be processed or for the imposition or execution of a sentence in the requesting State for a crime that warrants extradition.
Article 3 (2). Extradition may be refused under any of the following circumstances:
a) If the person whose extradition is requested is a national of the requested State. If the requested State refuses to extradite a national, if its laws permit so and, if so requested by the other State, it shall submit the case to the competent authorities to enable them to prosecute that person, for any or all the crimes that motivated the extradition request.
Extradition Treaty between Peru and Italy
Articles 2, 5 and 7 of the 1994 Extradition Treaty between Peru and Italy provides:
Article 2. Jurisdiction.
1. In order for an extradition to proceed, it is required that the offence that motivates the request was committed in the territory of the requesting State.
2. When the offence for which the extradition is requested was committed outside the territory of the Requesting State, extradition shall be granted if the requesting State has jurisdiction over the offence for which the extradition is requested and to pronounce a verdict accordingly.
Article 5. Optional rejection of the extradition.
Extradition may be refused:
a. If on the date on which the request is received, the person sought is a citizen of the requested Party;
Article 7. Prosecution established in the required State.
1. In case of refusal of extradition on the grounds mentioned in … paragraph a) of Article 5 …, the requested Party, if the other party so requests, shall submit the case to the competent authorities for the possible initiation of a criminal procedure. For this purpose, the requesting party must provide procedural documentation and any other useful element in their possession.
2. The requested Party shall immediately notify the other Party, on the measures taken in relation with the application and the outcome of any procedure in place.
Extradition Treaty between Argentina and the United States
Article 3 of the 1997 Extradition Treaty between Argentina and the United States provides: “The extradition and surrender of the person sought shall not be refused on the ground that such person is a national of the Requested Party.”
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that nationals would be tried in the Socialist Federal Republic of Yugoslavia at the request of a foreign country if reliable evidence of serious violations of IHL were provided.
Argentina’s Law on International Cooperation in Criminal Matters (1997) provides that if the person for whom extradition is sought has been an Argentine national since the time the crime was committed (and is still an Argentine national at the time of the option), such person may opt to be tried by Argentine courts, unless a treaty obliging the extradition of its nationals applies. If the Argentine national chooses to exercise this right, extradition is denied and the case is tried in Argentina under Argentine penal law, so long as the requesting State gives its consent and renounces its jurisdiction, and hands over the relevant records and evidence.
Armenia’s Penal Code (2003) provides: “The citizens of the Republic of Armenia who have committed a crime in another State are not extradited to that State.”
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states that a requirement for extradition includes “that a person whose extradition has been requested is not a citizen of Bosnia and Herzegovina”.
Brazil’s Law on the Legal Status of Foreigners (1980), as amended in 1981, states: “Extradition shall not be granted when: I- the person sought is Brazilian, except in case the nationality was acquired after the [commission of the] act which motivates the [extradition] request.”
Cameroon’s Criminal Procedure Code (2005) provides: “Except where otherwise provided by law, no Cameroonian citizen may be extradited.”
Central African Republic
The Central African Republic’s Penal Procedure Code (2010) states: “Extradition is not granted: … [i]f the requested individual is a Central African national at the time when the offence, for which the request was made, was committed”.
According to the Report on the Practice of Chile (1997), Chilean law does not, in general, prohibit the extradition of Chilean nationals.
Colombia’s Criminal Procedure Code (2004) states:
Extradition may be requested, conceded or offered in accordance with the public treaties and, failing this, with the law.
Moreover, the extradition of Colombians who are nationals by birth must be conceded for crimes committed abroad and considered as crimes under Colombian criminal legislation.
The extradition of Colombians who are nationals by birth must not proceed for acts committed before 17 December 1997.
The Code also states:
Conditions for offering or conceding [extradition]. The government may make the offer of or grant extradition subject to conditions which it considers opportune. In any case it must require that the person requested to be extradited will not be tried for a crime different from the one for which extradition was sought and will not be submitted to sanctions that differ from those imposed on him or her by the sentence.
If under the legislation of the state requesting the extradition, the crime which prompts the extradition is punished with the death penalty, the person sought may only be handed over under the condition that the death sentence be commuted and under the condition that the person to be extradited will not be subjected to enforced disappearance, torture, cruel, inhuman or degrading treatment or punishment, nor to forced exile, indefinite imprisonment or confiscation.
[emphasis in original]
Croatia’s Constitution (1990) and Code of Criminal Procedure (1993) prohibit the extradition of a Croatian national.
Georgia’s Constitution (1995) provides: “The extradition of a citizen of Georgia to another State is prohibited, except in cases provided for by international agreements. A decision on extradition may be appealed in court.”
Georgia’s Law on International Cooperation in Criminal Matters (2010), taking into account amendments up to 2016, states: “A Georgian citizen may not be extradited to a foreign state unless otherwise provided for by an international agreement of Georgia.”
Georgia’s Criminal Code (1999), taking into account amendments up to 2017, states:
Citizens of Georgia and persons having a status of stateless person in Georgia may not be extradited to another state for the purpose of criminal prosecution or serving a sentence, unless otherwise provided for [by] a treaty to which Georgia is a party.
Germany’s Law on International Legal Assistance in Criminal Matters (1982) states:
§ 2 Principle
(1) A foreign person who, in a foreign State, is prosecuted or has been convicted for an offence punishable in that State, can, on the request of a competent authority, be extradited to that State …
(3) Foreign persons in the terms of this law are persons who are not German nationals in the meaning of Article 116 paragraph 3 of the Basic Law [of the Federal Republic of Germany].
Germany’s Law on International Legal Assistance in Criminal Matters (1982), as amended in 2006, states:
Part One – Scope of Application
§ 1 Scope of application
(1) Legal assistance in criminal matters with foreign countries is based on this law.
(3) Provisions of international agreements, insofar as they have become directly applicable domestic law, have priority over the provisions of this law.
(4) Assistance for proceedings in criminal law matters with a Member State of the European Union is based on this law. Paragraph 3 is applied with the proviso that Part Eight of this law has priority over the international agreements mentioned there. The international agreements mentioned in paragraph 3 and the provisions on legal assistance without treaty of this law remain applicable in a subsidiary manner, insofar as Part Eight does not contain final provisions.
Part Eight – Assistance to Member States of the European Union
§ 80 Extradition of German nationals
(1) Extradition of a German national for the purpose of prosecution is permissible only, if
1. it is ensured that, after pronouncement of a final custodial sentence or another sanction, the Member State seeking extradition will, at the request of the wanted person, offer to transfer that person back into the area of application of this law for the enforcement of the sentence, and
2. the offence has a significant link to the Member State seeking extradition.
(2) If the conditions of paragraph 1, sentence 1, No. 2 are not fulfilled, extradition of a German national for the purpose of prosecution is permissible only if
1. the conditions of paragraph 1, sentence 1, No. 1 are fulfilled, and the offence
2. has no significant link to [Germany], and
3. the offence is unlawful also according to German law …, and if, in a concrete weighting of the conflicting interests, the legitimate expectation of the wanted person not to be extradited does not prevail.
(3) Extradition of a German national for the purpose of enforcement of a sentence is permissible only if the wanted person, after information and recorded by a judge, consents to it.
Iraq’s Constitution (2006) states: “No Iraqi shall be surrendered to foreign entities and authorities.”
Ireland’s Extradition Act (1965), as amended in 1994, provides: “Extradition shall not be granted where a person claimed is a citizen of Ireland, unless the relevant extradition provisions otherwise provide.”
Japan’s Law on Extradition (1953), as amended in 2004, states:
A fugitive shall not be surrendered in any of the following circumstances … [unless] the treaty of extradition provides otherwise:
(9) When the fugitive is a Japanese national.
Lithuania’s Criminal Code (1961), as amended in 1998, provides: “Citizens of the Republic of Lithuania shall not be extradited to foreign states for committing offences.”
Nigeria’s Extradition Law (1967) states:
6. Requests for surrender, and powers of Attorney-General thereon
(3) Except in so far as an extradition agreement in force between Nigeria and the requesting country otherwise provides, the Attorney-General may refuse to make an order under this section in respect of any fugitive criminal who is a citizen of Nigeria.
Portugal’s Law on International Judicial Cooperation in Criminal Matters (1999), as amended in 2001, provides:
1. Extradition shall be excluded … in the following cases:
a) where the offence was committed on Portuguese territory;
b) where the person claimed is a Portuguese national, without prejudice to the provisions of the following paragraph.
2. The extradition of Portuguese nationals shall however not be excluded where:
a) extradition of nationals is provided for in a treaty, convention or agreement to which Portugal is a Party, and
b) extradition is sought for offences of terrorism or international organized crime, and the legal system of the requesting State embodies guarantees of a fair trial.
Under the Russian Federation’s Constitution (1993), the extradition of Russian citizens is prohibited.
The Russian Federation’s Criminal Code (1996) also provides that Russian citizens who have committed crimes in the territory of a foreign State shall not be extradited to that State.
Under Rwanda’s Penal Code (1977), Rwandan nationals cannot be extradited.
Senegal’s Law on Extradition (1971) states:
The extradition is not accorded:
(1) if the individual who is subject to the request is a Senegalese national and their nationality is recognized at the time of the offence for which extradition is sought.
Sierra Leone’s Extradition Act (1974) states:
PART II—SPECIAL PROVISIONS TO COMMONWEALTH COUNTRIES
20. Discretion as to return of citizens, etc.
(1) No extradition shall be granted without the consent of the Attorney-General if the fugitive criminal whose return is requested is a citizen or permanent resident of Sierra Leone, unless the fugitive criminal is also a national of that part of the Commonwealth to which his return is requested.
Spain’s Law on Passive Extradition (1985) provides: “Extradition of Spanish nationals will not be granted.”
Switzerland’s Federal Act on International Mutual Assistance (1981), as amended to 2010, states:
1. No Swiss national may, without his written consent, be extradited or surrendered to a foreign State for prosecution or for the execution of a sentence. Consent may be withdrawn up to the time when the surrender is ordered.
2. Paragraph 1 does not apply to transit or return of a Swiss national who is temporarily surrendered by a third State to the Swiss authorities.
Tajikistan’s Constitution (1994), as amended to 2003, states: “No citizen of the Republic shall be extradited to a foreign state.”
Tajikistan’s Code on the Execution of Criminal Penalties (2001) states:
Article 6. Application of the Code on the Execution of Criminal Penalties of the Republic of Tajikistan with regard to persons sentenced by courts of a foreign State
Citizens of the Republic of Tajikistan … sentenced by courts of a foreign State may be extradited to the Republic of Tajikistan for execution and further serving of a sentence in accordance with the international legal acts recognized by the Republic of Tajikistan.
Article 7. Extradition of persons sentenced by courts of the Republic of Tajikistan
1. Citizens of the Republic of Tajikistan sentenced by courts of the Republic of Tajikistan shall not be subject to extradition under any conditions.
Uruguay’s Code of Criminal Procedure (2014) states:
ARTICLE 329. – (Applicable rules).
329.1 Extradition shall be governed by the rules provided for in the international treaties and conventions ratified by the Republic and currently in force.
329.2 For the crimes and offences defined under Law 18.026 of 25 September 2006 and the  Rome Statute of the International Criminal Court, the extradition and surrender of suspects shall be governed, moreover, by what is established by those rules.
329.3 In the absence or insufficiency of the abovementioned instruments, the following provisions shall apply.
ARTICLE 333. –
(Nationality). The nationality of the requested individual shall not prevent the submission of the extradition request and, when applicable, the surrender.
Uzbekistan’s Criminal Procedure Code Amendment Act (2010) states: “The extradition of a person from the territory of the Republic of Uzbekistan to a foreign State is not allowed if … the person in respect of whom the request is made is a citizen of the Republic of Uzbekistan”.
Venezuela’s Penal Code (2005) states:
A Venezuelan national may not be extradited for any reason whatsoever, but he or she shall be tried in Venezuela upon request by the victim or the Office of the Prosecutor if the act of which the person is accused is punishable under Venezuelan law.
Venezuela’s Constitution (2009) states: “The extradition of Venezuelans is prohibited.”
Under Yemen’s Constitution (1994), as amended, the extradition of nationals is prohibited.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Constitution (1992), as amended in 2000, provides that a Yugoslav citizen “may not be … deported from the country, or extradited to another state”.
In the Rome Statute case in 2001, the President of Ukraine made a submission to the Constitutional Court of Ukraine claiming that certain provisions of the 1998 ICC Statute were not in conformity with the Ukrainian Constitution. With regard to the legality of surrendering Ukrainian nationals to the ICC, the Constitutional Court stated:
2.3. Pursuant to part two of Article 25 of Ukraine’s Constitution, a citizen of Ukraine may not be extradited to another state.
Item 1 of Article 89 of the [1998 ICC] Statute stipulates that the International Criminal Court may submit a request for arrest and transfer of a person together with corresponding materials to any state on which territory the person stays, and address this state with a request for cooperation in arrest and transfer. Participating states, according to procedure stipulated by their national legislation, execute such a request.
[The President of Ukraine] considers that this provision of the Statute contradicts the aforementioned provision of Article 25 of Ukraine’s Constitution.
In his opinion, item 3 of Article 107 of the Statute does not comply with either, as the state enforcing a sentence may, pursuant to its legislation, extradite or otherwise surrender the person into the jurisdiction of a state which addressed it with a request to extradite or to surrender this person with the purpose of judicial prosecution or execution of sentence.
Analysis of provisions of Ukraine’s Constitution, the Statute and other materials of the case, as well as familiarization with special literature and international legal practice, provide grounds for Ukraine’s Constitutional Court to ascertain:
2.3.1. Terms “extradite” and “surrender” in general understanding of their application are considered often as synonyms, but in international legal documents and special literature they are understood with different sense of meaning, thus making their legal nature not identical.
Therefore, the international legal documents and special literature consider that delivery of a person to another equally sovereign state differs in principle from delivery of a person to the Court, established pursuant to international law with participation and agreement of interested states.
The first one is referred to in international legal terminology by the term “extradition” (from latin, ex: from, beyond; tradition: to transfer), and the letter by the term “surrender”.
The Statute also complies with this international legal practice, pursuant to its Article 102, “surrender” signifies the delivery of a person by a state to the Court, while “extradition” means the delivery of a person of one state to another state pursuant to provisions of international agreement, convention or national legislation.
2.3.2. According to part two of Article 25 of Ukraine’s Constitution, the extradition of Ukraine’s citizens to another state is prohibited. Therefore this prohibition concerns only national and not international jurisdiction. It aims to guarantee unbiased judicial review and justice and lawfulness of punishment for its citizens.
The International Criminal Court cannot be equated to a foreign court, as it is established, as stated before, with the participation and by agreement of participating states on the basis of international, not national law.
The purpose behind the prohibition to extradite citizens of one state to another is fulfilled in the International Criminal Court by applying the relevant provisions of the Statute that have been developed (or agreed) by the participating states. These provisions are based on international human rights treaties, by which Ukraine has already agreed to be bound.
2.3.3. Therefore the constitutional provisions related to the prohibition on extradition of citizens of Ukraine (even in case of a wide interpretation of the term “extradition”) should not be considered separately from the international and legal obligations of Ukraine.
Thus, it is necessary to consider the complementarity principle, stated in the Statute (Article 17), which stipulates that if national jurisdiction is being exercised with regard to persons who are guilty of committing the most serious international crimes, then the International Criminal Court should not exercise to them its own jurisdiction, therefore, the issue will not arise of their transfer to the International Criminal Court.
In 1968, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, Austria stated that “it was a principle recognized in international law that States were not bound to consent to the extradition of their own nationals”.
In 1973, during a debate in the Third Committee of the UN General Assembly, Belgium noted that Belgian law prohibited the extradition of Belgian nationals.
In an annual report issued in 2008 on its Program on Crimes Against Humanity and War Crimes, the Government of Canada stated:
War Crimes Program Activities from April 1, 2007, to March 31, 2008
Canada uses a holistic approach in its domestic and international fight against impunity of persons involved in war crimes, crimes against humanity or genocide. The Program has a broad arsenal of nine legislative remedies at its disposal, including the ability to prevent war criminals from entering Canada through the Denial of Visas Overseas and Denials at Port of Entry; and methods to deal with war criminals already in Canada, using Exclusion; Admissibility Hearings; Removals; Revocation of Citizenship; Extradition; Surrender to International Criminal Tribunals; and Criminal Investigations and Prosecution. …
Remedies for War Criminals in Canada
The War Crimes Program may proceed with any of the seven remaining remedies to deal with war criminals who have entered Canada: Exclusion of refugee status in the context of a refugee claim; Admissibility Hearings; Removal; Revocation of Citizenship; Extradition; Surrender to International Tribunals; and Criminal Investigations and Prosecution.
Revocation of Citizenship
CIC [Citizenship and Immigration Canada], DOJ [Department of Justice] and the RCMP [Royal Canadian Mounted Police] work closely together in citizenship revocation cases and have several legal remedies at their disposal including criminal prosecution under the Crimes Against Humanity and War Crimes Act and civil proceedings under the IRPA [Immigration and Refugee Protection Act] or the Citizenship Act. CIC has 18 active modern-day war crimes cases to review for possible revocation of citizenship and one of the cases, Mr. Branko Rogan, is presently before the Federal Court.
The DOJ continues to handle allegations of crimes against humanity, war crimes and genocide related to the Second World War. During the fiscal year 2007– 2008, 17 Second World War files were under active investigation, 145 initial allegations related to the Second World War were being examined and 74 files have been concluded because the individuals never entered Canada, have left Canada, have since passed away or because there was lack of evidence to justify pursuing legal action.
The Minister of Citizenship and Immigration commenced proceedings to revoke Mr. Michael Seifert’s citizenship in Federal Court on November 13, 2001. The hearing concluded on September 15, 2006, with the judge reserving his decision. On November 13, 2007, the Federal Court concluded that Mr. Seifert obtained entry to Canada and Canadian citizenship through misrepresentation and by knowingly concealing his place of birth, his association with the security police and his activities as a camp guard. On May 24, 2007, the Government of Canada announced that the Governor in Council had revoked Mr. Helmut Oberlander’s citizenship. Mr. Oberlander has commenced a judicial review application of this decision before the Federal Court. The Government of Canada also announced the revocation of citizenship of Mr. Jacob Fast on the same day. Due to the passage of time, the age and availability of witnesses and the challenges of gathering evidence, criminal prosecution is no longer a viable remedy for Second World War cases.
Extradition and Surrender to International Criminal Tribunals
In 1999, the Extradition Act was amended to allow Canada to enter into agreements with other countries for extradition on a case-by-case basis and to allow for surrender of Canadians to international tribunals …
Italy requested the extradition of Michael Seifert, who was convicted in absentia
by an Italian Military Tribunal in November 2000 for war crimes related to the Second World War. Mr. Seifert was surrendered to Italy in February 2008. Citizenship revocation proceedings against Mr. Seifert are ongoing.
[footnote in original omitted]
In 2007, in its initial report to the Committee against Torture, Chad stated: “Under article 447 of the Criminal Code, no extradition is permitted … [w]hen the person who is the subject of the request is of Chadian nationality”.
In 1968, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, Chile stated: “The principle whereby the requested State was not bound to accede to the extradition of its own nationals was recognized by only a minority of States in international law.”
In 2010, in its initial report to the Committee against Torture, Djibouti stated: “Extradition treaties … provide for exceptional cases in which, for obvious reasons, States parties, following Djibouti’s example, do not extradite their respective nationals.”
Upon ratification of the 1977 Additional Protocol I, Mongolia declared:
In regard of Article 88, paragraph 2 of the Additional Protocol to the Protection of Victims in the International Armed Conflicts (“Protocol I”) which states [that] “The High Contracting Parties shall co-operate in the matter of extradition”, the Mongolian law which prohibits deprivation and extradition of its citizens from Mongolia shall be respected.
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
I. Information on new measures and new developments relating to the implementation of the  Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
Article 7 of the Convention
121. As a general rule, extradition is regulated in Senegal by Act No. 71-77 of 28 December 1971. Article 5 of this law lists the cases in which extradition shall not be granted:
(1) When the subject of the request is a Senegalese national and was recognized as such at the time of the commission of the offence for which extradition is requested[.]
In 2010, in its second periodic report to the Committee against Torture, Tajikistan stated: “Tajik citizens sentenced by Tajik courts may under no circumstances be extradited to another country.”
United Kingdom of Great Britain and Northern Ireland
In 2003, in a written ministerial statement in the House of Commons, the UK Secretary of State for the Home Office stated regarding a new bilateral extradition treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America:
The new treaty also maintains the present position that political motivation cannot be used to block extradition in the case of terrorist or other violent crimes. The treaty stipulates that neither nationality nor statutes of limitations will be a bar to extradition.
In 2011, in its fourth periodic report to the Committee against Torture, Uzbekistan stated:
Pursuant to article 603 of the Code of Criminal Procedure, extradition of a person situated in Uzbekistan to a foreign State is not permitted:
(a) Where the person sought is a national of Uzbekistan.
In the report, Uzbekistan also stated: “No national of Uzbekistan may be extradited for an offence committed in a foreign State except where international treaties or agreements provide otherwise.”
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
93. Extradition in Venezuela is governed by article 69 of the Constitution, which prohibits the extradition of nationals; the same provision appears in article 6 of the Criminal Code, the Code of Criminal Procedure, specific legislation and extradition treaties signed and ratified by the Republic. Where a Venezuelan national has committed torture in foreign territory, he or she must be tried in Venezuela at the request of the injured party or the Public Prosecution Service.
Guiding principles on extradition in Venezuela
95. The main points are:
(a) Principle that nationals should not be extradited. This principle is established in the Constitution, which prohibits the extradition of Venezuelans. Moreover, article 6 of the Criminal Code provides that a national whose extradition is requested “shall be tried in Venezuela at the request of the injured party or the Public Prosecution Service, if the offence of which the person concerned is accused is subject to punishment under Venezuelan law”.
115. The Venezuelan State recognizes the offence of torture as a crime that gives rise to extradition. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment constitutes part of the legal body of protection for human rights, within the limits established in the Constitution. The treaties entered into by the Republic do not place any restriction on the extradition of nationals who have committed the crime of torture and, even where there is no extradition treaty between States, extradition is possible in accordance with the rules of international law and on the basis of the principles of international solidarity and reciprocity in order to avoid impunity for offences committed abroad.
[footnote in original omitted]
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
Extradition in Venezuela is regulated by article 69 of the Constitution of the Bolivarian Republic of Venezuela, which prohibits the extradition of nationals. This is in line with article 6 of the Criminal Code, the Code of Criminal Procedure, special laws and extradition treaties signed and ratified by the Republic.
[footnote in original omitted]