Geneva Conventions (1949)
Article 49, second paragraph, of the 1949 Geneva Convention I, Article 50, second paragraph, of the 1949 Geneva Convention II, Article 129, second paragraph, of the 1949 Geneva Convention III and Article 146, second paragraph, of the 1949 Geneva Convention IV provide:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie
European Convention on Extradition
Under Article 1 of the 1957 European Convention on Extradition, the parties undertake:
to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.
European Convention on Extradition
Article 2(1) of the 1957 European Convention on Extradition provides:
Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty.
European Convention on Extradition
Article 4 of the 1957 European Convention on Extradition provides: “Extradition for offences under military law which are not offences under ordinary criminal law is excluded from the application of this Convention.”
European Convention on Extradition
Article 11 of the 1957 European Convention on Extradition provides for the possibility to refuse extradition if the offence for which it is requested is punishable by death under the law of the requesting party.
UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
Article 3 of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity provides:
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition in accordance with international law, of the persons referred to in Article 2 of this Convention [i.e. representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of war crimes or crimes against humanity, or who conspire to commit them, irrespective of the degree of completion, and representatives of the State authority who tolerate their commission].
Additional Protocol I (draft)
Article 78 of the draft Additional Protocol I, entitled “Extradition” and submitted by the ICRC to the CDDH, provided:
Grave breaches of the Conventions or of the present Protocol, whatever the motives for which they were committed, shall be deemed to be included as extraditable offences in any extradition treaty existing between the High Contracting Parties. The High Contracting Parties undertake to include the said grave breaches as extraditable offences in every extradition treaty to be concluded between them.
If a High Contracting Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another High Contracting Party with which it has no extradition treaty, the Conventions and the present Protocol shall be considered as the legal basis for extradition in respect of the said grave breaches. Extradition shall be subject to the other conditions provided by the law of the requested High Contracting Party.
High Contracting Parties which do not make extradition conditional on the existence of a treaty shall recognize the said grave breaches as extraditable offences between themselves subject to the conditions provided by the law of the requested High Contracting Party.
After several proposals of amendment, paragraph 1 of Article 78 was rejected in Committee I of the CDDH by 27 votes in favour, 7 against and 39 abstentions; paragraph 2 was rejected by 41 votes in favour, one against and 29 abstentions; Article 78 was consequently rejected as a whole.
Additional Protocol I
Article 88(2) of the 1977 Additional Protocol I provides:
Subject to the rights and obligations established in the [1949 Geneva] Conventions and in Article 85, paragraph 1 of this Protocol, and when circumstances permit, the High Contracting Parties shall co-operate in the matter of extradition. They shall give due consideration to the request of the State in whose territory the alleged offence has occurred.
OAU Convention against Mercenarism
Article 7 of the 1977 OAU Convention against Mercenarism states:
1. A request for extradition cannot be rejected, unless the State from which it is sought undertakes to prosecute the offender in accordance with the provisions of Article Five of the present Convention.
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.
4. A state will be regarded as an interested party for the outcome of a prosecution as defined in section 3 of this Article if the offence has some connection with its territory or militates against its interests.
Second Additional Protocol to the European Convention on Extradition
Article 3 of the 1978 Second Additional Protocol to the European Convention on Extradition provides that extradition may be refused, under certain conditions, in case it is requested for the purpose of carrying out a sentence or detention order imposed by a decision rendered against a person in absentia
Second Additional Protocol to the European Convention on Extradition
Article 4 of the 1978 Second Additional Protocol to the European Convention on Extradition provides: “Extradition shall not be granted for an offence in respect of which an amnesty has been declared in the requested State and which that State had competence to prosecute under its own criminal law.”
Convention against Torture
Article 3(1) of the 1984 Convention against Torture provides: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
Convention against Torture
Article 7(1) of the 1984 Convention against Torture provides:
The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
UN Mercenary Convention
Article 15 of the 1989 UN Mercenary Convention provides:
1. The offences set forth in articles 2, 3 and 4 of the present Convention shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may at its option consider the present Convention as the legal basis for extradition in respect of those offences. Extradition shall be subject to the other conditions provided by the law of the requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize those offences as extraditable offences between themselves, subject to the conditions provided by the law of the requested State.
4. The offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the State required to establish their jurisdiction in accordance with article 9 of the present Convention.
Extradition Treaty between Argentina and the United States of America
Article 1 of the 1997 Extradition Treaty between Argentina and the United States of America provides: “the Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities in the Requesting State have charged with or found guilty of an extraditable offense”.
Extradition Treaty between Argentina and the United States of America
Article 2 of the 1997 Extradition Treaty between Argentina and the United States of America provides:
1. An offense shall be an extraditable offense if it is punishable under the laws in both Parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty …
4. In accordance with the provisions of this Treaty, extradition shall be granted for offenses committed in whole or in part within the Requesting State’s territory, which, for the purposes of this Article, includes all places subject to that State’s criminal jurisdiction. Extradition shall also be granted for offenses committed outside the territory of the Requesting State if:
(a) the act or acts that constitute the offense have effects in the territory of the Requesting State; or
(b) the laws in the Requested State provide for punishment of an offense committed outside its territory in similar circumstances.
Extradition Treaty between Argentina and the United States of America
Article 7 of the 1997 Extradition Treaty between Argentina and the United States of America provides: “Extradition shall not be denied on the ground that the prosecution or the penalty would be barred under the statute of limitations in the Requested State.”
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 18 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property, which according to its Article 22(1) also applies to armed conflicts not of an international character, provides:
1. The offences set forth in Article 15 sub-paragraphs 1 (a) to (c) shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the Parties before the entry into force of this Protocol. Parties undertake to include such offences in every extradition treaty to be subsequently concluded between them.
2. When a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, the requested Party may, at its option, consider the present Protocol as the legal basis for extradition in respect of offences as set forth in Article 15 sub-paragraphs 1 (a) to (c).
3. Parties which do not make extradition conditional on the existence of a treaty shall recognise the offences set forth in Article 15 sub-paragraphs 1 (a) to (c) as extraditable offences between them, subject to the conditions provided by the law of the requested Party.
4. If necessary, offences set forth in Article 15 sub-paragraphs 1 (a) to (c) shall be treated, for the purposes of extradition between Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the Parties that have established jurisdiction in accordance with Article 16 paragraph 1.
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
2. The offence of enforced disappearance shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties before the entry into force of this Convention.
3. States Parties undertake to include the offence of enforced disappearance as an extraditable offence in any extradition treaty subsequently to be concluded between them.
4. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance.
5. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offence of enforced disappearance as an extraditable offence between themselves.
6. Extradition shall, in all cases, be subject to the conditions provided for by the law of the requested State Party or by applicable extradition treaties, including, in particular, conditions relating to the minimum penalty requirement for extradition and the grounds upon which the requested State Party may refuse extradition or make it subject to certain conditions.
7. Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any one of these reasons.
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
Paragraph 18 of the 1989 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provides:
Governments shall either bring … persons [identified by the investigation as having participated in extra-legal, arbitrary or summary executions] to justice or cooperate to extradite any such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespectively of who and where the perpetrators or the victims are, their nationalities or where the offence was committed.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 6 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind, dealing with the “Obligation to try or extradite”, provides:
1. A State in whose territory an individual alleged to have committed a crime against the peace and security of mankind is present shall either try or extradite him.
2. If extradition is requested by several States, special consideration shall be given to the request of the State in whose territory the crime was committed.
3. The provisions of paragraphs 1 and 2 do not prejudge the establishment and the jurisdiction of an international criminal court.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 9 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Obligation to extradite or prosecute”, provides:
Without prejudice to the jurisdiction of an international criminal court, the State Party in the territory of which an individual alleged to have committed a crime set out in articles 17, 18, 19 or 20 [crime of genocide, crimes against humanity, crimes against United Nations and associated personnel, war crimes] is found shall extradite or prosecute that individual.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 10 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, entitled “Extradition of alleged offenders”, provides:
1. To the extent that the crimes set out in articles 17, 18, 19 and 20 [crime of genocide, crimes against humanity, crimes against United Nations and associated personnel, war crimes] are not extraditable offences in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those crimes as extraditable offences in every extradition treaty to be concluded between them.
2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may at its option consider the present Code as the legal basis for extradition in respect of those crimes. Extradition shall be subject to the conditions provided in the law of the requested State.
3. State Parties which do not make extradition conditional on the existence of a treaty shall recognize those crimes as extraditable offences between themselves subject to the conditions provided in the law of the requested State.
4. Each of those crimes shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territory of any other State Party.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)
Article 5 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law provides: “States shall incorporate within their domestic law … appropriate legislation to facilitate extradition or surrender of offenders to other States and to international judicial bodies.”
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of IHL (2005)
Paragraph 5 of the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL provides:
[W]here it is so provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies and provide judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject to international legal requirements such as those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment.
Belgium’s Law of War Manual (1983) states:
The States Signatory to the [1949 Geneva] Conventions have engaged to take a series of measures in order to promote their respect. These measures can be summarized as follows:
3) search for, identification and prosecution before the own courts of the authors of grave breaches, whatever their nationality may be, or extradition of these authors to the State which requests for it, within the limits of the legislation in force.
Burundi’s Regulations on International Humanitarian Law (2007) states:
The obligation to suppress breaches of the law of war takes the form … of aut dedere, aut judicare
. It pledges any State to search for the authors of war crimes or crimes against humanity, either by penal prosecution … irrespective of their nationality, the nationality of the victims or the place where the acts were committed, or by extraditing the authors, according to the law of the State concerned, to the State which requests their extradition in order to prosecute them.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
II.1. National repression
Grave breaches of international humanitarian law need to be prosecuted not only by the detaining power, but by each State in the power of which the presumed culprit finds himself. One therefore speaks of universal jurisdiction. States must therefore give mutual legal assistance, for example by extraditing an accused if a State renounces criminal prosecution.
Italy’s IHL Manual (1991) notes: “International cooperation for the search, arrest, extradition and punishment of persons who have committed [war crimes] is established.”
The Military Manual (1993) of the Netherlands states: “In general, States … must cooperate as much as possible with respect to the extradition of war criminals.”
New Zealand’s Military Manual (1992) states: “[The 1977 Additional Protocol I] Art. 88 requires the parties to assist one another in connection with grave breaches, including cooperation in matters of extradition.”
Peru’s IHL and Human Rights Manual (2010) states:
IHL imposes on States the obligation to search for and punish all persons who have committed grave breaches [of IHL], irrespective of the nationality of the perpetrator or the place where they committed the crime. This obligation stems from the principle called UNIVERSAL JURISDICTION … , and includes the obligation to prosecute them or to extradite them. This obligation falls on all States affected by the commission of the crime.
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) provides that each party to the 1949 Geneva Conventions shall cooperate to extradite persons who have committed grave breaches of IHL.
Spain’s LOAC Manual (1996) provides:
The States have the obligation to search for persons accused of having committed, or having ordered to be committed, grave breaches, being obliged to make them appear before their own tribunals, regardless of their nationality. They can also agree to the extradition of those persons in order for them to be judged by other States, in accordance with the legal obligations which regulate the said extradition.
The manual adds: “States shall provide each other with the greatest possible mutual assistance for the penal repression of violations, at national and international level. Such cooperation shall also be accorded in extradition matters.”
Spain’s LOAC Manual (2007) states:
States have a duty to search for those suspected of having committed or having ordered others to commit grave breaches and try them in their own courts, regardless of their nationality. They can also extradite such persons to be tried by another State, provided that legal extradition requirements are met.
Sweden’s IHL Manual (1991) notes:
Additional Protocol I … states that the contracting parties shall to the greatest extent possible assist each other in connection with penal procedures instituted as a consequence of grave breaches of the Geneva Conventions or the Protocol. The States shall also cooperate in extradition cases …
In the extradition request the government can refer to the article in Additional Protocol I concerning mutual assistance in criminal proceedings ([the 1977 Additional Protocol I], Art. 88:2), according to which due consideration shall be given to a request for extradition from the state in whose territory the alleged offence has occurred.
Ukraine’s IHL Manual (2004) states:
Each State shall be under the obligation to search for persons who have committed, or to have ordered to be committed, war crimes (including those crimes that were a result of a failure to take precautionary measures that had to be taken).
Any person charged with such crimes shall be handed over to a requesting State unless that person was brought to justice for serious violations of international humanitarian law in its own State.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Ensuring respect for the law of armed conflict is a universal responsibility. International co-operation is encouraged by Additional Protocol I, which provides for:
c. mutual assistance in criminal proceedings brought in respect of grave breaches of the conventions or protocol, including assistance with evidence and extradition.
Afghanistan’s Law on Combating the Financing of Terrorism (2004) states:
The authorities of the Islamic Republic of Afghanistan agree to cooperate [to the extent] possible with those of other States for the purposes of information exchange, investigation, and proceedings, provisional measures and confiscations of instruments and proceeds associated with [the] financing of terrorism for purposes of extradition.
Afghanistan’s Law against Terrorist Offences (2008) states:
The competent authorities of Afghanistan may cooperate with other countries in the combat against terrorist offences [including offences committed against protected persons pursuant to article 13 of this law] in accordance with the provisions of the Law on Extradition of Suspects, Accused and Convicts.
Armenia’s Penal Code (2003) provides:
In accordance with an international treaty of the Republic of Armenia, the foreign citizens and stateless persons who committed a crime outside the territory of the Republic of Armenia and who find themselves in the Republic of Armenia can be extradited to a foreign State, for criminal liability or to serve a sentence.
Belgium’s Law on Cooperation with the International Criminal Court and the International Criminal Tribunals (2004), as amended, provides:
Within the limits set out in Article 108 of the Statute [of the International Criminal Court], Belgium may, pursuant to its legislation, extradite or surrender in any other way a convicted person serving his sentence to the State requesting his extradition or surrender, or to the international tribunal which requested his surrender for the purpose of trial or execution of sentence.
Brazil’s Law on the Legal Status of Foreigners (1980), as amended in 1981, states:
Article 76. Extradition may be granted when the requesting government invokes a treaty or promises reciprocity to Brazil.
Article 77. Extradition shall not be granted when:
II - the act which motivates the [extradition] request is not considered a crime in Brazil or in the requesting State;
III - Brazil has jurisdiction, according to its legislation, to prosecute the crime attributed to the person sought;
IV - according to Brazilian law, the crime shall be punished with a sentence of prison of one year or less;
V - the person sought is on trial or has already been convicted or acquitted in Brazil for the same act based on which [the extradition is] requested;
VI - the crime cannot be punished because the statutes of limitation have expired according to Brazilian law or the law of the requesting State;
VIII - the person sought would be subject to an ad hoc court in the requesting State.
Article 78. For an extradition to be granted, the following conditions shall be fulfilled:
I - the crime must have been committed in the territory of the requesting State or the criminal laws of such State must apply to the person sought; and
II - there must be either a final sentence of imprisonment or an arrest warrant for the person sought issued by a judge, tribunal or competent authority of the requesting State, except in the case provided for in article 82 [regarding preventive detention in urgent situations].
Cameroon’s Criminal Procedure Code (2005) provides:
Conditions of Extradition
(1) Any act serving as a ground for extradition shall:
(b) by Cameroon law, constitute an ordinary law offence;
(b) Offences of universal jurisdiction provided by international conventions and ratified by Cameroon shall be considered as ordinary law offences.
Canada’s Extradition Act (1999), as amended to 2005, states:
3. (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner [a State or entity with which Canada is party to an extradition agreement, with which Canada has entered into a specific agreement or whose name appears in the schedule attached to the Extradition Act] for the purpose of prosecuting the person or imposing a sentence on – or enforcing a sentence imposed on – the person if
(a) subject to a relevant extradition agreement, the offence in respect of which the extradition is requested is punishable by the extradition partner, by imprisoning or otherwise depriving the person of their liberty for a maximum term of two years or more, or by a more severe punishment; and
(b) the conduct of the person, had it occurred in Canada, would have constituted an offence that is punishable in Canada,
(i) in the case of a request based on a specific agreement, by imprisonment for a maximum term of five years or more, or by a more severe punishment, and
(ii) in any other case, by imprisonment for a maximum term of two years or more, or by a more severe punishment, subject to a relevant extradition agreement.
(2) For greater certainty, it is not relevant whether the conduct referred to in subsection (1) is named, defined or characterized by the extradition partner in the same way as it is in Canada.
(3) Subject to a relevant extradition agreement, the extradition of a person who has been sentenced to imprisonment or another deprivation of liberty may only be granted if the portion of the term remaining is at least six months long or a more severe punishment remains to be carried out.
5. A person may be extradited
(a) whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction; and
(b) whether or not Canada could exercise jurisdiction in similar circumstances.
6. Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.
6.1 Despite any other Act or law, no person who is the subject of a request for surrender by the International Criminal Court or by any international criminal tribunal that is established by resolution of the Security Council of the United Nations and whose name appears in the schedule [the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia], may claim immunity under common law or by statute from arrest or extradition under this Act.
REASONS FOR REFUSAL
44. (1) The Minister [of Justice] shall refuse to make a surrender order if the Minister is satisfied that
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or
(b) the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin, language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.
(2) The Minister may refuse to make a surrender order if the Minister is satisfied that the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner.
46. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that
(a) the prosecution of a person is barred by prescription or limitation under the law that applies to the extradition partner;
(b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; …
47. The Minister may refuse to make a surrender order if the Minister is satisfied that
(a) the person would be entitled, if that person were tried in Canada, to be discharged under the laws of Canada because of a previous acquittal or conviction;
(b) the person was convicted in their absence and could not, on surrender, have the case reviewed;
(c) the person was less than eighteen years old at the time of the offence and the law that applies to them in the territory over which the extradition partner has jurisdiction is not consistent with the fundamental principles governing the Youth Criminal Justice Act;
(d) the conduct in respect of which the request for extradition is made is the subject of criminal proceedings in Canada against the person; or
(e) none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction.
47.1 The grounds for refusal set out in sections 44, 46 and 47 do not apply in the case of a person who is the subject of a request for surrender by the International Criminal Court.
ORDER OF SURRENDER
59. Subject to a relevant extradition agreement, the Minister may, if the request for extradition is based on more than one offence, order the surrender of a person for all the offences even if not all of them fulfil the requirements set out in section 3, if
(a) the person is being surrendered for at least one offence that fulfils the requirements set out in section 3; and
(b) all the offences relate to conduct that, had it occurred in Canada, would have constituted offences that are punishable under the laws of Canada.
71. (1) A person may, at any time after arrest or appearance, consent, in writing and before a judge, to being surrendered.
(4) When a person consents to being surrendered to the extradition partner, the following sections do not apply:
(b) section 44 (reasons for refusal).
Central African Republic
The Central African Republic’s Penal Procedure Code (2010) states:
The Central African Government can, upon the request of foreign Governments, hand over non-nationals found on the territory of the [Central African] Republic if they are subjected to proceedings in the requesting State or to a sentence pronounced by the courts [of this State].
Nevertheless, extradition is only granted if the offence, for which the request has been made, was committed:
- on the territory of the requesting State by a national of that State or by a foreigner;
- outside its territory by a national of the State;
- outside the territory of the State by a foreigner, when Central African law authorizes the prosecution of the offence, even when it was committed by a foreigner outside of the national territory.
China’s Extradition Law (2000) states:
The request for extradition made by a foreign state to the People’s Republic of China shall be rejected if:
(4) the person sought is one against whom penal proceedings instituted or punishment may be executed for reasons of that person’s race, religion, nationality, sex, political opinion or personal status, or that person may, for any of those reasons, be subjected to unfair treatment in judicial proceedings.
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.”
Germany’s Law on International Legal Assistance in Criminal Matters (1982) states: “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.”
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides:
The restriction on granting extradition contained in section 12 of the Extradition Act, 1965 [which states that “extradition shall not be granted for offences under military law which are not offences under ordinary criminal law”], does not apply in the case of an offence involving a grave or minor breach of any of the [1949 Geneva] Conventions or [the 1977 Additional] Protocol I or a minor breach of [the 1977 Additional] Protocol II.
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:
(3) When the offence for which extradition is requested is not punishable by death, or by imprisonment for life or for a maximum term of three years or more by the laws, regulations or ordinances of the requesting country;
(4) When the act constituting the offence for which extradition is requested would not be punishable under the laws, regulations or ordinances of Japan by death or by imprisonment for life or for a maximum term of three years or more if the act were committed in Japan.
Lithuania’s Criminal Code (1961), as amended in 1998, provides:
Foreigners who have committed a crime shall be extradited for committing offences in accordance with corresponding international and interstate agreements, or, if there are no such agreements, in accordance with the laws of the Republic of Lithuania.
Foreign nationals shall not be extradited if the acts committed by them are not considered criminal under the criminal laws of the Republic of Lithuania.
Persons shall not be … extradited to foreign countries for committing acts which have been ground for granting asylum in the Republic of Lithuania.
Luxembourg’s Law on the Punishment of Grave Breaches (1985) states that, under certain conditions:
Luxembourg can hand over to governments of States parties to the [1949 Geneva Conventions] every foreign person being prosecuted or convicted in these States for an offence provided for in the Geneva Conventions and in Article 1 of this law, provided that sufficient charges are held against [him or her] and that the statutes of limitation for the public prosecution or for the sentencing have not yet been reached under Luxembourg’s law.
Under the Act on the Surrender of Persons Suspected of War Crimes (1954), as amended in 2003, of the Netherlands, individuals can be surrendered to another power for trial if they are suspected of having committed one of the crimes defined in Article 3 (genocide) and Articles 5 to 8 (war crimes committed in an international or a non-international armed conflict, and torture) and, in so far as it is connected with the offences referred to in those articles, Article 9 of the International Crimes Act.
Nigeria’s Extradition Act (1967) states:
3. Restrictions on surrender of fugitives
(2) A fugitive criminal shall not be surrendered if it appears to the Attorney-General or a court dealing with the case-
(a) that the request for his surrender, although purporting to be made in respect of an extradition crime, was in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions or was otherwise not made in good faith or in the interest of justice; or
(b) that, if surrendered, he is likely to be prejudiced at his trial, or to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions,
(3) A fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that, by reason of-
(a) the trivial nature of the offence for which his surrender is sought; or
(b) the passage of time since the commission of the offence,
it would, having regard to all the circumstances in which the offence was committed, be unjust or oppressive, or be too severe a punishment, to surrender the offender.
(4) A fugitive criminal shall not be surrendered if the Attorney-General or a court dealing with the case is satisfied that, whether in Nigeria or elsewhere, he-
(a) has been convicted [of the] offence for which his surrender is sought; or
(b) has been acquitted thereof, and that, in a case falling within paragraph (a) of this subsection, he is not unlawfully at large.
(5) A fugitive criminal shall not be surrendered if criminal proceedings are pending against him in Nigeria for the offence for which his surrender is sought.
(6) A fugitive criminal-
(a) who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence for which his surrender is sought; or
(b) who is serving a sentence imposed in respect of any such offence by a court in Nigeria, shall not be surrendered until such time as he has been discharged whether by acquittal or on the expiration of his sentence, or otherwise.
4. Offences under military law
(1) A fugitive criminal may be surrendered notwithstanding that the Attorney-General or a court dealing with the case is satisfied that the offence constitutes an offence only under military law or law relating only to military obligations.
5. Liability of fugitives to surrender
Every fugitive criminal of a country to which this Act applies shall, subject to the provisions of this Act, be liable to be arrested and surrendered in the manner provided by this Act, whether the offence in respect of which his surrender is sought was committed before or after the commencement of this Act or the application of this Act to that country, and whether or not there is concurrent jurisdiction in any court in Nigeria over that offence.
6. Requests for surrender, and powers of Attorney-General thereon.
(1) A request for the surrender of a fugitive criminal of any country shall be made in writing to the Attorney-General by a diplomatic representative or consular officer of that country and shall be accompanied by a duly authenticated warrant of arrest or certificate of conviction issued in that country.
Portugal’s Law on International Judicial Cooperation in Criminal Matters (1999), as amended in 2001, provides:
1. Extradition may be granted only for the purpose either of instituting criminal proceedings or of executing a sanction or measure involving deprivation of liberty, for an offence that the courts of the requesting State have jurisdiction to try.
2. For any such purpose, surrender of a person shall be possible only in respect of offences, including attempted offences, that are punishable under both the Portuguese law and the law of the requesting State by a sanction or measure involving deprivation of liberty for a maximum period of at least one year …
Trial of an extradited person sentenced by Gacaca Courts
A person extradited to be tried in Rwanda and who has been sentenced by Gacaca Courts shall be tried by a competent court as provided by this Organic Law.
However, the decision of the Gacaca Court shall first be nullified by that court.
Sierra Leone’s Extradition Act (1974) states:
Part I – GENERAL
2. Public Policy.
(1) No extradition shall be granted under any of the provisions of this Act if, in the circumstances of the particular case, it appears to the Attorney-General that it would be contrary to the public policy of Sierra Leone to do so.
(2) For the purposes of this section the expression “public policy of Sierra Leone” shall be taken to include –
a. the interests of security, public order and good morals; and
b. fundamental human rights and the principles of humane treatment generally accepted among civilised nations.
PART II—SPECIAL PROVISIONS TO COMMONWEALTH COUNTRIES
15. Circumstances precluding return.
(1) Section 2 shall not apply to cases under this Part, but extradition shall not be granted if in the circumstances of the particular case it appears to the Attorney-General that –
a. the offence is an offence of a political character; or
b. the request for surrender although purporting to be made for a returnable offence was in fact made for the purpose of prosecuting or punishing any person on account of his race, religion, nationality or political opinions; or
c. the person returned may be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions; or
d. the case is of a trivial nature; [or]
e. the accusation against the fugitive was not made in good faith or in the interest of justice; or
f. having regard to all the circumstances it would be unjust or oppressive or too severe a punishment to return the fugitive; or
g. the fugitive has been convicted of the offence of which he is accused and is neither unlawfully at large nor at large in breach of a condition of a license to be at large; or
h. the fugitive has been acquitted, whether within or outside the Commonwealth, of the offence of which he is accused.
17. Offences for which extradition may be granted.
Extradition may be granted for any of the offences set out in the Fourth Schedule [which includes murder; manslaughter; counterfeiting and altering money or bank notes and uttering counterfeit or altered money or bank notes and other offences relating to coinage and bank notes; forgery, counterfeiting and altering and uttering what is forged, counterfeited or altered; embezzlement; larceny; obtaining money or goods by false pretences; offences by bankrupts under any law relative to bankruptcy; fraudulent misappropriation and frauds by a bailee; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; bribery; sinking or destroying a vessel at sea; assault on board a ship on the high seas with intent to destroy life or do grievous bodily harm; revolt by two or more persons on board ship on the high seas against the authority of the master; offences in connection with the slave trade committed on the high seas or on land; kidnapping; false imprisonment; perjury and subornation of perjury; malicious or wilful damage to property; offences against legislation relating to dangerous drugs; offences against the person; any offence of a nature or category similar to any of the above-mentioned offences which is for the time being punishable in Sierra Leone; any conspiracy or attempt to commit any of the above-mentioned offences and the counselling, procuring, commanding, aiding or abetting of any such offence or being an accessory before or after]:
Provided that if the offence for which extradition is requested would not be an offence if committed in Sierra Leone extradition shall not be granted without the consent of the Attorney-General.
PART III—SPECIAL PROVISIONS APPLYING TO THE REPUBLIC OF GUINEA
22. In the case of the Republic of Guinea and such other countries as may from time to time be listed in the Second Schedule[,] the provisions of Part I shall apply subject to the following conditions, limitations and modifications –
a. in any case where extradition is requested for a non-political crime it shall not be granted unless –
i. the crime was committed in the Republic of Guinea; and
ii. the fugitive criminal has not been, and is not liable to be, punished in Sierra Leone for that crime, and
b. in all cases, extradition shall be granted only in respect of a crime which (due regard being had to differences between the legal systems of the respective countries) corresponds to a crime punishable under the criminal law of Sierra Leone. …
PART IV—SPECIAL CONDITIONS APPLYING TO THE COUNTRIES LISTED IN THE THIRD SCHEDULE
23. Special conditions applying to countries listed in the Third Schedule.
In the case of the countries listed in the Third Schedule the provisions of Part I shall apply subject to the following conditions, limitations and modifications –
a. extradition shall be granted only in respect of a crime which –
i. falls within one of the categories of offences listed in the Fourth Schedule; and
ii. corresponds to a crime punishable in Sierra Leone with imprisonment for a term of twelve months or more; and
b. extradition shall not be granted for any offence which appears to the Attorney-General to be of a political character.
Sierra Leone’s Constitution (1991) states:
18. Protection of freedom of movement.
(1) No person shall be deprived of his freedom of movement, and for the purpose of this section the said freedom means … immunity from expulsion [from] Sierra Leone.
(3) Nothing contained in or done under authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
e. for the removal of a person from Sierra Leone to be tried outside Sierra Leone for a criminal offence recognised as such by the laws of Sierra Leone, or to serve a term of imprisonment outside Sierra Leone in the execution of the sentence of a court in respect of a criminal offence of which he has been convicted[.]
Switzerland’s Federal Act on International Mutual Assistance (1981), as amended to 2010, states in its general provisions:
Unless other federal acts or international agreements provide otherwise, this Act shall govern all procedures of international cooperation in criminal matters, and in particular:
a. the extradition of persons who are the subject of criminal prosecution or have been convicted.
In the section on extradition, the Act further states:
Foreign nationals may be surrendered to another State for prosecution or enforcement of a sentence involving deprivation of liberty for acts which come under its criminal jurisdiction if that State requests extradition or if it accepts the Swiss request to prosecute the offence or enforce the judgment.
The Act also states:
1. Extradition is permitted if, according to the documents supporting the request, the offence:
a. is punishable by deprivation of liberty for a maximum period of at least one year or a more severe sentence both under the law of Switzerland and under the law of the requesting State and
b. is not subject to Swiss jurisdiction.
2. In determining whether an act is an offence under Swiss law, the following are not considered:
a. its specific degrees of guilt and conditions for criminal liability;
b. the conditions relating to the personal and time-related application of the Swiss Criminal Code and the Swiss Military Criminal Code of 13 June 1927 with regard to the criminal provisions on genocide, crimes against humanity and war crimes.
[footnotes in original omitted]
The Act further states:
2. Extradition shall be denied if the request is based on a verdict issued in the absence of the defendant and if the minimum rights of the defence to which a defendant is recognised to be entitled were not respected in the proceedings preceding the verdict; this rule does not apply if the requesting State gives sufficient assurances to guarantee the defendant the right to new court proceedings where the rights of the defence are respected.
3. Extradition shall also be denied if the requesting State fails to guarantee that the defendant will not be sentenced to death, that an already pronounced death penalty will not be carried out, or that he will not be subjected to treatment that will impair his physical integrity.
[footnotes in original omitted]
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, which also contains a chapter on war crimes, states in the part on general provisions:
1 If the personal conditions are fulfilled, the present code is applicable both to offences committed in Switzerland and to those committed abroad.
1bis The present code applies to persons mentioned in art. 5 [paragraph 1], number 1, letter d and number 5, who have committed abroad one of the acts under … chapter 6bis [war crimes] of Part 2 or art. 114a [punishability of superiors] if they are present in Switzerland, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland.
1ter Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognized by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there;
c. the necessary evidence cannot be obtained.
The present code applies to persons who have committed abroad, against a Swiss military person, one of the acts under … chapter 6bis
[war crimes] of Part 2 or art. 114a
[punishability of superiors], if they are present in Switzerland or have been extradited there because of this act, unless they are extradited or transferred to an international criminal court whose jurisdiction is recognized by Switzerland.
[footnotes in original omitted]
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states in in the common provisions under the titles on genocide and crimes against humanity and on war crimes:
1 A person who carries out an act under Title 12bis and 12ter [on war crimes] or Art. 264k [on the criminal liability of superiors] while abroad is guilty of an offence if he is in Switzerland and is not extradited to another State or delivered to an international criminal court whose jurisdiction is recognised by Switzerland.
2 Where the victim of the act carried out abroad is not Swiss and the perpetrator is not Swiss, the prosecution, with the exception of measures to secure evidence, may be abandoned or may be dispensed with in the following cases:
a. a foreign authority or an international criminal court whose jurisdiction is recognised by Switzerland is prosecuting the offence and the suspected perpetrator is extradited or delivered to the court;
b. the suspected perpetrator is no longer in Switzerland and is not expected to return there.
Tajikistan’s Criminal Procedure Code (2009) states:
Extradition is prohibited if:
– Tajikistan has granted political asylum to the person concerned;
– The act cited as grounds for the extradition request is not considered as a crime by Tajikistan;
– A sentence has taken effect or a case has been dismissed in relation to the commission of the same offence by the person concerned;
– There is information suggesting that the person might be subjected to torture in the State requesting extradition (Law No. 1134 of 27.11.14);
– Under Tajik legislation, charges may not be brought or the sentence may not be enforced, on the grounds of extinction or other legal considerations.
Uganda’s ICC Act (2010) states:
27. Refusal of request for arrest and surrender.
(2) The Minister may refuse a request for arrest and surrender of a person, at any time before the surrender of the person only if-
(a) there is a competing request for extradition from one or more States not party to the Statute for the person for the same conduct which forms the basis of the crime for which the ICC seeks the person’s surrender and a decision to extradite to a State is made in accordance with article 90 of the Statute and section 41; or
(b) there is a competing request from one or more States not party to the Statute for the extradition of the person for different conduct from that which constitutes the crime for which the ICC requests the person’s surrender and a decision to extradite is made in accordance with article 90 of the Statute and section 41.
41. Competing requests.
(1) Where a request for surrender of a person is received from the ICC and one or more states also request the extradition of the person for the same conduct that forms the basis of the crime for which [the] ICC seeks a person’s surrender, the Minister-
(a) shall notify the ICC and the requesting state of that fact; and
(b) shall determine whether the person is to be surrendered to the ICC or to the requesting state.
United States of America
The US Military Extraterritorial Jurisdiction Act (2000), under a provision entitled “Delivery to authorities of foreign countries”, provides:
(a) Any person designated and authorized … may deliver a person described in section 3261(a) [“whoever engages in conduct outside the United States that would constitute an offence punishable by imprisonment for more that 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States – (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces”] to the appropriate authorities of a foreign country in which such person is alleged to have violated section 3261(a) if
(1) appropriate authorities of that country request the delivery of the person to such country for trial for such conduct as an offence under the laws of that country; and
(2) the delivery of such person to that country is authorized by a treaty or other international agreement to which the United States is a party.
United States of America
The US Intelligence Reform and Terrorism Prevention Act (2004) states with regard to the treatment of aliens who commit acts of torture, extrajudicial killings or other atrocities abroad:
Sec. 5505. Establishment of the Office of Special Investigations.
(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT.—Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
(h)(1) The Attorney General shall establish within the Criminal Division of the Department of Justice an Office of Special Investigations with the authority to detect and investigate, and, where appropriate, to take legal action to denaturalize any alien described in section 212(a)(3)(E) [relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings].
(2) The Attorney General shall consult with the Secretary of Homeland Security in making determinations concerning the criminal prosecution or extradition of aliens described in section 212(a)(3)(E).
(3) In determining the appropriate legal action to take against an alien described in section 212(a)(3)(E), consideration shall be given to—
(A) the availability of criminal prosecution under the laws of the United States for any conduct that may form the basis for removal and denaturalization; or
(B) the availability of extradition of the alien to a foreign jurisdiction that is prepared to undertake a prosecution for such conduct.
Uzbekistan’s Criminal Procedure Code Amendment Act (2010) states:
Article 600. Limits of criminal liability of a person extradited to the Republic of Uzbekistan
Individuals extradited to Uzbekistan by a foreign State cannot be prosecuted, punished or transferred to a third State for an offence committed before the extradition, which was not subject to the request for extradition, without the consent of the State which had extradited them …
The General Prosecutor of the Republic of Uzbekistan shall notify the authorities of the foreign State of the outcome of the criminal proceedings against the extradited person. At the request of the said authorities, a copy of the final decision in the criminal case may be sent.
Article 601. Execution of a request for extradition of a person from the territory of the Republic of Uzbekistan
A request for the extradition of a person from the territory of the Republic of Uzbekistan for criminal prosecution or execution of sentence shall be assessed by the General Prosecutor of the Republic of Uzbekistan in accordance with international treaties Uzbekistan is a party to and with the principle of reciprocity.
The principle of reciprocity shall be confirmed in writing … by the competent authority of the foreign State, which submitted the request for extradition …
Article 603. Refusal to extradite a person from the territory of the Republic of Uzbekistan to a foreign state
The extradition of a person present in the territory of the Republic of Uzbekistan to a foreign State is not allowed if:
– the offence subject to the request for extradition was committed in the territory of the Republic of Uzbekistan or against the interests of the Republic of Uzbekistan outside its territory;
– a conviction … [or] a decision of a competent authority not to initiate or to terminate criminal proceedings is in force in the Republic of Uzbekistan against the same person and in respect of the same conduct that is the subject of the request for extradition;
– the conduct subject to the request for extradition does not constitute an offence under the laws of the Republic of Uzbekistan;
– in accordance with the laws of the Republic of Uzbekistan, the criminal proceedings may not be initiated … or the sentence may not be executed due to statutes of limitations or for other legitimate reasons;
– criminal proceedings ha[ve] been initiated in the Republic of Uzbekistan with regard to the same person;
– the person with respect to whom the request was issued was granted asylum in the Republic of Uzbekistan in connection with the possibility of persecution in the requesting State on the account of race, religion, nationality, membership [of] a particular social group[,] or political opinion.
Venezuela’s Penal Code (2005) states:
A foreign national may not be extradited for political crimes or violations connected to such crimes, nor for any act that is not defined as a crime under Venezuelan laws
Extradition of a foreign national for ordinary crimes may only be granted by the appropriate authority, in conformity with the procedures and prerequisites established in the international treaties signed by and in force for Venezuela; absent these, those established under Venezuelan law shall apply.
Extradition of a foreign national may not be granted in cases where the crime in question carries the death penalty or life imprisonment under the requesting State’s legislation.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Article 391. Extradition is governed by the provisions of this Title, by the treaties, conventions and international agreements to which the Republic is a party.
Article 395. If a foreign government requests the extradition of a person that is within the territory of Venezuela, the Executive will send a request to the Supreme Tribunal of Justice with the documentation received [from the country].
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Article 382. Extradition is governed by the provisions of the Constitution of the Bolivarian Republic of Venezuela, the treaties, conventions and international agreements to which the Republic is a party and the provisions of this Title.
. If a foreign government requests the extradition of a person that is within the territory of the Bolivarian Republic of Venezuela, the Executive will send the request to the Supreme Tribunal of Justice with the documentation received [from the country].
Zimbabwe’s Extradition Act (1982) provides:
(1) Subject to this Act, a person may be arrested, detained and extradited from Zimbabwe to a designated country … for an offence in respect of which in the designated country he is accused or has been convicted and is required to be sentenced or to undergo punishment, whether the offence was committed before or after the declaration of the country concerned as a designated country.
(2) This part shall apply to any offence which –
(a) is punishable in the law of the designated country concerned by imprisonment for a period of twelve months or by any more severe punishment; and
(b) would constitute an offence punishable in Zimbabwe if the act or omission constituting the offence took place in Zimbabwe or, in the case of an extraterritorial offence, in corresponding circumstances outside Zimbabwe.
In the Bohne case
in 1966, in which extradition was requested for crimes related to the execution of mentally ill patients during Germany’s Nazi regime, Argentina’s Supreme Court of Justice emphasized that it was “a duty under international law to provide mutual support in the pursuit of criminals that represent a danger to all”. It added that the extradition process was founded on the common interest of all States for offenders to be tried, and possibly punished, “by the country whose jurisdiction had cognisance of the criminal acts concerned”.
In the Schwammberger case
in 1989 concerning a request for extradition by the Federal Republic of Germany, Argentina’s Cámara Federal de La Plata referred to the prosecution and punishment of the major war criminals. The public prosecutor referred to the lawfulness of an extradition for an act committed outside the territory of the requesting State. The Court, invoking the various commitments made at the international level regarding the handing over of individuals accused of war crimes, rejected the request of the defendant to be tried by Argentine courts, an option provided by Argentine law, and affirmed the lower court’s decision granting the request for extradition.
In the same case before the Supreme Court of Justice in 1990, both the Attorney-General and the Court considered that:
The prosecution and punishment of crimes committed prior to changes in sovereignty constitutes a discretionary decision for the new power rather than an obligation, but as the new power has expressed an interest in exercising penal authority against such crimes, the international community has no legitimate reason to oppose such measures.
At the hearing of the Public Prosecutor of the First Instance in the Priebke case
in Argentina in 1995, the public prosecutor qualified the alleged acts of the requested person as war crimes and stated that the refusal to extradite him to Italy would trigger the international responsibility of Argentina, even if such refusal would be based on a rule of internal law.
The extradition request was granted by the Court of first instance which stated that there could be no statutory limitation with regard to the alleged acts and therefore rejected the argument raised by the defence that extradition could not be granted because the acts were prescribed under Argentine law.
However, the Court of Appeal found that under the terms of Argentine legislation, penal action was extinguished and that, therefore, extradition had to be refused.
The Supreme Court of Justice found in favour of the requested person’s extradition and considered that the acts for which extradition was sought were prima facie
genocide. It added: “The classification of offences as crimes against humanity does not depend on whether the requesting or requested State agrees with the extradition process, but instead on the principles of
of international law.”
In 2010, in the Zentai case, in which an appeal against a ministerial decision to extradite the applicant to Hungary for the purposes of a preliminary investigation regarding his involvement in alleged war crimes in 1945 was upheld, Australia’s Federal Court held:
190. Article 2, para 5(a) [of the Treaty on Extradition between Australia and the Republic of Hungary 1995 – the Treaty] is directed to excluding from the operation of the Treaty and hence the Act Extradition Act 1988 (Cth)], true cases of foreign legislation with retrospective application. It deals with the creation of substantive criminal liability as in the case of the specified offence of war crime. Such laws can be distinguished from those affecting procedural matters, the validation of ultra vires administrative acts or declarations that rights in issue in legal proceedings shall be the subject of legislative declaration or action.
191. Article 2, para 5(a) of the Treaty gives expression not only to the principle of nullum crimen sine lege requiring the existence of criminal liability at the relevant time but also the principle of nulla poena sine lege (no punishment without law) as incorporated in to Arts 22 and 23 of the Rome Statute of the International Criminal Court 1998. Article 22 provides that the definition of war crime should be strictly construed and should not be extended by analogy. In case of ambiguity the definition should be interpreted in the favour of the person being investigated, prosecuted or convicted. From this it follows that not only must the law clearly define the elements of a crime so that an individual might know what acts and omissions will make him liable but it must also prescribe a penalty that is certain. This presupposes that the offence of war crime was both clearly defined in the relevant Hungarian written law and that the penalty was publicised in that statute or decree.
192. Both those conditions were absent on 8 November 1944 when the “crime” was alleged to have been committed.
193. To have retrospective application the language of enactment must be such that no other conclusion is possible than that was the intention of the legislature (Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 622–624 per Deane, Dawson, Toohey and Gaudron JJ). Given the transient and evolving nature of the concept of war crimes, the elements of which may vary at different periods of time, this principle of construction is important. Unlike other international instruments such as the ECHR [1950 European Convention on Human Rights], the ICCPR [1966 International Covenant on Civil and Political Rights] and the  Rome Statute Establishing the International Criminal Court where retrospectivity is qualified by an exception in the case of war crime, the Treaty contains no such exception.
194. Had it been intended to qualify that exception to exclude “war crimes”, it would and should have done so in clear, direct and unequivocal terms. That is not only an Australian drafting approach but is also well known to international humanitarian law pursuant to the various conventions discussed above.
195. It follows therefore that the proviso to Art 2, para 5(a) unqualified by any reservation in the case of war crimes should be read strictly and according to its plain meaning so that extradition must not be ordered unless the nominated offence existed in domestic and Hungarian law at the time of the relevant accepted acts.
199. The fact that Hungary might have sought his extradition for an offence of murder for acts committed in November 1944, does not operate as a de facto or de jure surrogate for the war crime for which Mr Zentai’s surrender (for interrogation) is actually sought.
200. Significantly, the offence of “war crime” requires additional elements such as, relevantly, the killing of civilians by a military person during war or occupation. It imposes a different penalty. Mr Zentai argues that if Hungary relies on an equivalent offence of murder under the Hungarian Criminal Code, it should have requested extradition for prosecution of that offence.
201. Further, the fact that other bilateral extradition treaties that Australia concluded after 1985 do not incorporate the well-known reservations in respect of retrospective war crimes, does not explain the failure of Art 2 to include such a reservation in Art 2, para 5(a) or assist in its construction.
209. I accept that if Art 2(5)(a) is ambiguous, nothing has been produced to resolve the ambiguity. On its face, it reflects an important international human rights principle against retrospectivity. There is no modifying clause equivalent to well-known provisions in the ECHR and ICCPR that seek to counterbalance the international human rights principle of protection of the individual against arbitrary punishment with a premium placed by international humanitarian law in punishing war crimes and crimes against humanity.
210. Murder is not the same thing as a war crime. It may be that killing someone is an element of the offence of murder and the offence of war crime involves killing someone. It does not necessarily mean that they are the same. The penalties, also, are different.
211. Making every possible allowance for the obligations of co-operative, sensible, purposive and liberal interpretation contended for by the Commonwealth, Mr Zentai’s argument is well made in my view. An offence of “war crime” is a different offence from the offence of murder. That is so under Australian law and, on the evidence, on Hungarian law. Secondly, the penalties are different.
212. The Treaty deals with offences. It does not deal with “conduct” as the Department advised the Minister. While it is not surprising that at the end of the war Hungary made the offence of war crime retrospective so that those charged with war crimes during the war might be prosecuted with war crimes, not with murder, that does not overcome the plainest of language in the Treaty. The offence of war crime did not exist in Hungary at the time it was allegedly committed.
394. [In summary] … war crime[s], in any event, did not exist in Hungary at the date it was allegedly committed, and the Treaty proscribes retrospectivity with no exception for War Crimes.
[emphasis in original]
In the Barbie extradition case
in 1974, Bolivia’s Supreme Court turned down France’s request for the extradition of Klaus Barbie, the head of the Gestapo in Lyon during the Second World War, who had been found guilty of war crimes in absentia
. The rejection was based on the absence of an extradition treaty between the two States.
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
Any restriction imposed by a State in relation to the extradition, without prosecution, of the persons suspected of having violated international humanitarian law constitutes a violation of the international obligations of that State.
In March 1996, in the Bagosora case, Cameroon’s Court of Appeals of the Centre Region stated:
Having regard to the extradition request concerning the aforementioned Théoneste Bagosora, residing in Yaoundé since July 1995;
Having regard to the international arrest warrant dated 29 May 1995 issued against him by the investigating judge of the Court of First Instance of Brussels [Tribunal de Première Instance de Bruxelles;
Having regard to Law No. 64-LF-13 of 26 June 1964 laying down the extradition régime in Cameroon;
Having regard to the international Geneva Conventions of 12 August 1949 and the Protocols I and II of 8 June 1977 additional to these Geneva Conventions;
Whereas, on 19 January 1996, the Belgian government seized the Cameroonian government with an extradition request concerning the aforementioned Théoneste BAGOSORA, of Rwandan nationality, residing in Cameroon since July 1995;
Whereas, in support of this request, the Belgian government states that the person concerned is charged by the Belgian judicial authorities in context with the murder of ten Belgian paratroopers at Kigali (Rwanda) and the genocide which followed the murder of the Rwandan and Burundian heads of State on 6 April 1994;
Whereas, following this charge, an arrest warrant was issued on 29 May 1995 by the investigating judge responsible for these proceedings in Brussels;
Whereas it follows from the documents in the file and the discussions during the hearing that the aforementioned BAGOSORA is seriously suspected of carrying a direct responsibility in the massacres that followed the attack committed against the Rwandan presidential airplane on 6 April 1994, and in the murder of the ten Belgian blue helmets;
Whereas these massacres resulted in more than 500,000 victims and constitute violations of international law such as provided for in the Geneva Conventions of 12 August 1949 and in the Protocols I and II of 8 June 1977 additional to these Conventions, applicable to Cameroon, in Belgium and to Congo [sic];
Whereas Belgium, Cameroon and Rwanda acceded to these conventions on 12 December 1977, 16 March 1984 and 19 November 1984, respectively;
Whereas, furthermore, Article 7 of the Belgian Law of 16 June 1993 permits Belgian courts to exercise jurisdiction over such violations, independent of the place where they were committed, whenever a Belgian national is involved;
Whereas the international arrest warrant issued against the aforementioned BAGOSORA clearly mentions that he is charged with an attack committed against the Rwandan presidential airplane on 6 April 1994, and for the death of ten blue helmets during that massacre;
Whereas these acts are of a nature to lead to a principal penalty of correctional imprisonment of one year, or to a more severe penalty not exceeding 15 years of hard labour;
Whereas these acts are ordinary law offences from the point of the Cameroonian Penal Code;
Whereas it follows from the above that the conditions provided for in Article 11 of Law No. 64-LF-13 of 26 June 1964 laying down the extradition regime in Cameroon are thus fulfilled, the extradition […] , in fact, not aiming at a political purpose;
[The Court of Appeals of the Centre Region [i]ssues a favourable decision regarding the legal admissibility of the extradition request formulated by the Belgian government.
In May 1996, in the Ruzindana case, Cameroon’s Court of Appeals of the Centre Region stated:
Having regard to the extradition request entered by the Government of the Republic of Rwanda against the aforementioned Augustin Rusindena, Jean Baptiste Butera and others, residing in Yaoundé since July 1995;
Having regard to the international arrest warrants issued against the persons concerned on 15 March 1996 by the Prosecutor General at the Court of Appeals of Kigali;
Having regard to Law No. 64-LF-13 of 26 June 1964 laying down the extradition régime in Cameroon;
Whereas by a request dated 18 March 1996 the Rwandan government seized the Cameroonian government for the purpose of the extradition of the aforementioned RUSINDENA Augustin, BUTERA Jean Baptiste, MUGENZI Justin, MUTABAMKLA Sylvain, NTAGERURA André, SEMANZIA Laurent, MPIRANYER Protais, MUBERUKA Félicien, BARIHENDA Augustin, SEKAKO Ephrein, NKUNDIYE Léon, NSENGIYUMBA Anatole, MUSABE Pasteur, NZIRORERA Joseph, NAHIMANA Ferdinand, BIZIMUNGU Télésphore, BAKUZAKUNDI Michel, BARAYAGWIZA Jean Bosco;
Rwandan citizens currently living in Cameroon;
Whereas it follows both from the request and from the aforementioned international arrest warrants, enforced on 29 March 1996, that the aforementioned persons, between 1 October 1990 and 31 July 1994, committed genocide, massacre of civilian populations on national, political, ethnic, racial or religious grounds, in Kigali or in other localities in Rwanda;
Whereas it follows from the documents in the file and from the discussions that the International Criminal Tribunal for Rwanda is already operational; that the Tribunal’s Prosecutor, on 15 April 1996, asked the Cameroonian judicial authorities for assistance by proceeding to the preliminary arrest of the aforementioned Rwandans on the basis of counts of serious violations of international humanitarian law and of other crimes within the jurisdiction of the said International Tribunal;
Whereas Article 13 of the internal Rules [of Procedure and Evidence] of the aforementioned International Tribunal prohibits national courts from exercising jurisdiction in a matter as soon as the said Tribunal is seized of them;
Whereas, according to Article 8 of [the 1994 ICTR Statute, annexed to] UN Security Council Resolution 955 of 9 November 1994, the International Criminal Tribunal for Rwanda is a supranational court and has primacy over the national courts of the country concerned;
Whereas its decisions are applicable immediately and are not subject to the extradition régime;
Whereas it follows from the above that at the current stage of the proceedings the extradition request by the Rwandan Government can no longer be examined since the International Criminal Tribunal for Rwanda is operational;
Whereas it is necessary to stay adjudication until the completion of the proceedings before the International Criminal Tribunal for Rwanda;
[The Court of Appeals of the Centre Region], on the application of the Public Prosecutor, stays adjudication regarding the extradition request presented by Maître Paul Nhanag on behalf of the Rwandan Government until the completion of the proceedings before the International Criminal Tribunal for Rwanda.
In 1997, in the Ruzindana case (No. 2), Cameroon’s Court of Appeals of the Centre Region stated:
Having regard to the extradition request entered by the Government of the Republic of Rwanda against the aforementioned Augustin Ruzindana and others, residing in Yaoundé since July 1995;
Having regard to the international arrest warrants issued against the aforementioned persons on 15 March 1996 by the Prosecutor General at the Court of Appeals of Kigali;
Having regard to Law No. 64-LF-13 of 26 June 1964 laying down the extradition régime in Cameroon, modified by Law No. 97/010 of 10 January 1997;
Having regard to Judgment No. 615/ADD of 31 May  of this Court ordering a stay of adjudication;
Whereas by a request dated 18 March 1996, the Rwandan Government, acting by and through its counsel in Cameroon, Maître Paul Nhanag, seized the Minister of Justice of Cameroon for the purpose of the extradition of 19 Rwandans said to be residing within the borders of the Republic of Cameroon;
Whereas in support of that request the Rwandan Government annexed 19 international arrest warrants signed on 15 March 1996 by the Prosecutor General of Kigali and containing an identical accusation: genocide and grave violations of international humanitarian law;
Whereas the international arrest warrants issued against 11 of these Rwandans were enforced on 29 March 1996, and thus joined the first, colonel Bagosora, who already was the object of an international arrest warrant by the Kingdom of Belgium, enforced since 9 March 1996;
Whereas it follows both from the request submitted and from the international arrest warrants attached that the aforementioned Rwandans, between 1 October 1990 and 31 July , committed, in Kigali or in other localities in Rwanda, genocide and other crimes against humanity by launching widespread and systematic attacks against civilian populations on national, political, ethnic, racial or religious grounds;
Whereas, by doing this, the Rwanda Government seeks their extradition in order that they answer for their crimes before the Rwandan courts;
Whereas the aforementioned Théoneste Bagasora, André Ntageura, Ferdinand Nahimana and Anatole Nsengiyumva, charged for the same acts by the Prosecutor of the International Criminal Tribunal for Rwanda, have been transferred to the seat of that Tribunal in Arusha, at the request of that court and in application of Decrees No. 97/005, 97/006, 97/007 and 97/008 by the President of the Republic of Cameroon, authorizing that transfer;
Whereas the present request currently only concerns eight Rwandans, for whom the arrest warrant had been enforced, namely:
1. RUZINDANA AUGUSTIN
2. BUTERA JEAN BAPTISTE
3. SEMANZA LAURENT
4. MUBERUKA FELICIEN
5. MUSABE PASTEUR
6. RIZIMUNGU TELESPHORE
7. BAKUZAKUNDI MICHEL
8. BARAYAG[W]IZA JEAN BOSCO.
Whereas it follows from the documents in the file and from the discussions that the request by the Rwandan Government was not made through diplomatic channels, as it is required by Article 15 of Law No. 64-LF-13 of 26 June 1964, as modified;
Whereas, in fact, that law requires imperatively that every extradition request must pass through diplomatic channels in order to allow the Minister of External Relations to make sure of the authenticity of the documents annexed to the request, before any seizing of the judicial authorities;
Whereas the documents provided by the Rwandan Government were produced in photocopy and not in the original, as the legislation on the matter demands it; that request is irregular;
Whereas, furthermore, the new Article 29 of the Law laying down the extradition regime provides that no person can be extradited to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture;
Whereas, finally, the Office of the Prosecution of the International Criminal Tribunal [for Rwanda], after investigation, has dropped the case against the 8 Rwandans currently detained;
Whereas, according to UN Security Council Resolution 955, which created the International Criminal Tribunal for Rwanda, and according to the Tribunal’s Rules of Procedure and Evidence, that tribunal has primacy over the national courts;
Whereas it would be inappropriate to allow the national Rwandan courts to exercise jurisdiction over the same facts regarding the eight Rwandans;
Whereas it is therefore necessary to issue an unfavourable decision regarding the legal admissibility of that extradition request;
Whereas Article 25 of Law No. 64-LF-13 of 26 June 1964, as modified, provides that when the Court issues an unfavourable decision, the foreigner must be released immediately; whereas it is necessary to order the immediate release of the eight Rwandans;
[The Court of Appeals of the Centre Region] issues an unfavourable decision regarding the legal admissibility of the extradition request by the Rwandan Government;
Orders the immediate release of the eight Rwandans concerned, if they are not detained in relation to another matter.
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, stated:
 In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
 The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
 On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). Ribic was then residing in Germany. He was extradited and brought to Canada to stand trial. Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
 Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
 Ribic appeals his convictions. … I would dismiss the appeal.
In the Barbie case in 1983, France’s Court of Cassation quoted the Court of Appeal which had stated that it was competent to examine the submissions made in the application by Barbie, according to which his detention was a nullity since there did not exist any extradition treaty between France and Bolivia and it was the result of a “disguised extradition”:
In the absence of any extradition request, the execution of an arrest warrant on national territory, against a person who has previously taken refuge abroad, is not subject to his voluntary return to France or to the institution of extradition proceedings. Furthermore, by reason of their nature, the crimes against humanity do not simply fall within the scope of French municipal law but are subject to an international criminal order to which the notions of frontiers and extradition rules arising therefrom are completely foreign.
The Court of Cassation stated: “In giving this ruling … the Court of Appeal gave a proper legal basis to its decision, without inadequacy or contradiction.” Referring to the 1945 London Agreement and UN General Assembly Resolution 3(I) of 1946 on extradition and punishment of war criminals, the Court ruled that:
It results from these provisions 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”. By reasons of the nature of those crimes, these provisions are in accordance with the general principles of law recognized by the community of nations.
In 2008, in the Ntawukuriryayo case, the Criminal Chamber of France’s Court of Cassation was called upon to decide about the transfer of the appellant to the International Criminal Tribunal for Rwanda. The appellant claimed that his transfer to that tribunal would be merely a prelude to his extradition to Rwanda, where he would not receive a fair trial. The Court stated:
[W]hen a French … authority … transfers a person to a foreign authority due to an international warrant in order for the person to be tried [abroad], the French authority has the obligation to ensure that, as a result of the transfer, the person’s fundamental rights and judicial guarantees, as established by France’s Constitution and international obligations, will not be violated. This absolute obligation implies necessarily that the judge … must receive guarantees that the requesting authority will not subsequently transfer the … person to a third authority which does not guarantee the respect for such rights.
In 2003, in the Al-Moayad case, Germany’s Federal Constitutional Court held:
The constitutional complaint is rejected as unfounded.
By way of his constitutional complaint, the complainant challenges orders of the Frankfurt am Main Higher Regional Court … that declared the complainant’s extradition to the United States of America for criminal prosecution admissible and rejected the remonstrances that the complainant made against the orders as unfounded.
1. According to his own statement, the complainant is an adviser of the Yemeni Minister for Religious Foundations in the rank of an undersecretary of state and imam of the Al-Ihsan Mosque in Sanaa/Yemen.
He was arrested in Frankfurt am Main on 10 January 2003, together with his secretary. The arrest was based on an arrest warrant of 5 January 2003 issued by the United States District Court for the Eastern District of New York. The United States prosecution authorities charge the complainant with having provided money, weapons and communications equipment to terrorist groups, in particular Al-Qaeda and Hamas, and with having recruited new members for these groups, between October 1997 and his arrest.
Instrumental in making the complainant travel to Germany were conversations that a Yemeni citizen maintained with the complainant in Yemen in an undercover mission of the United States investigation and prosecution authorities. The confidential informant convinced the complainant that he could bring him into contact with another person abroad who was willing to make a major financial contribution. In this context, it is controversial for what purposes the money was supposed to be donated. According to the statement made by the complainant’s secretary in his interrogation by the German investigation authorities in which he was heard as a person charged with a criminal offence, the decision to travel to Germany was based on the complainant’s voluntary decision.
2. On the basis of the order of the Frankfurt am Main Higher Regional Court of 14 January 2003, the complainant was placed under provisional arrest pending extradition. On 24 January 2003, the Embassy of the United States sent a request for the complainant’s extradition for criminal prosecution to the federal government. The request for extradition was based on the extradition treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 … in conjunction with the supplementary treaty of 21 October 1986 …
5. In a verbal note of 22 May 2003, the United States Embassy assured that the complainant would not be prosecuted by a military tribunal pursuant to the Presidential Military Order of 13 November 2001 (U.S. Federal Register of 16 November 2001, Vol. 66 No. 222, pp. 57831 et seq.) or by any other extraordinary court. The assurance was given preserving the United States’ legal opinion that the military commissions provided in the Presidential Military Order are no extraordinary courts within the meaning of Article 13 of the extradition treaty between Germany and the United States of America.
By way of his constitutional complaint, the complainant challenges a violation of Article 101.1 sentence 2 in conjunction with Article 100.2, Article 2.2 in conjunction with Article 25, Article 2.1, Article 2.1 in conjunction with Article 1.1 and Article 19.4, Article 103.1 and 103.2 of the Basic Law and of his right to a fair trial.
The admissible constitutional complaint is unfounded.
The complainant’s rights under Article 2.1 in conjunction with Article 1.1 of the Basic Law and Article 19.4 of the Basic Law have not been violated. The Higher Regional Court declared the extradition admissible in accordance with the constitutional preconditions. This also applies to the extent that the complainant had applied for a further investigation into the facts of the case as concerns methods of interrogation in the United States that are allegedly contrary to due process of law. The Higher Regional Court had rejected this submission with reference to a lack of indications to this effect in the United States’ practice. This reasoning is constitutionally unobjectionable.
On the one hand, the reasoning is consistent with the Federal Constitutional Court’s recent case-law, pursuant to which in mutual assistance concerning extradition, especially if it is rendered on the basis of treaties under international law, the requesting State is, in principle, to be shown trust as concerns its compliance with the principles of due process of law and of the protection of human rights. This principle can claim validity as long as it is not shaken by facts to the contrary (Order of the Second Senate of the Federal Constitutional Court of 24 June 2003 – 2 BvR 685/03 –, Extradition to India). Such facts did not exist at the point in time of the Higher Regional Court’s decision.
On the other hand, decisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.
Moreover, it is to be taken into consideration that the relations of mutual judicial assistance that exist between Germany and the United States on the basis of treaties under international law have been intensified even more by the signing of the Agreement on Mutual Judicial Assistance in Criminal Matters on 14 October 2003. This circumstance confirms the assumption that, in principle, the United States will comply with their obligations vis-à-vis Germany (on this, cf. the Order of the Second Senate of the Federal Constitutional Court of 24 June 2003 – 2 BvR 685/03 –, III 2.b).
Moreover, it can be assumed that the federal government itself will observe the further proceedings in the United States through its diplomatic missions.
In the decision in the trial of first instance in the Cavallo case
in 2001, a Mexican court allowed the extradition, on the request of a Spanish judge, of Ricardo Miguel Cavallo, a former military officer of Argentine citizenship charged with committing acts of genocide, torture and terrorism during the 1976–1983 “dirty war” in Argentina. The Court’s decision was based, inter alia
, on the principle of universal jurisdiction.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2010, in the Couso case
, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court referred to norms of IHL relevant to the case under review, including Article 146 of the 1949 Geneva Convention IV on the obligation to prosecute or extradite persons responsible for grave breaches.
United Kingdom of Great Britain and Northern Ireland
In 2006, in the Ahmad and Aswat case, the England and Wales High Court of Justice held:
Introductory: Background Facts
1. This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 (“the 2003 Act”) …
2. … On 6 October 2004 a federal grand jury sitting in Bridgeport, Connecticut, returned an indictment against Mr Ahmad alleging the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering …
4. Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York … The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon …
The 2003 Act
5. In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
7. Part II deals with “category 2” territories. These are also designated by order of the Secretary of State [and include countries to which the framework decision of the Council of the European Union on the European arrest warrant (2003) does not apply]. A principal category 2 territory is the United States … S.70 requires the Secretary of State to issue a certificate “if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom”. In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate’s issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge … The judge may then (s.71(2)) “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled …
8. As for the extradition hearing itself … the judge must next proceed under s.79 which is cross-headed “Bars to extradition”. There are four such bars, of which the second (s.79(1)(b)) is “extraneous considerations” and is engaged by one of Mr Fitzgerald’s [appearing as counsel for the appellants] submissions. “Extraneous considerations” are dealt with in s.81, which provides in part:
“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
9. … S.87 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 84 …) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
Military Order No 1
20. On 13 November 2001, thus almost exactly two months after the atrocities of 11 September 2001, the President of the United States issued Military Order No 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” …
Sec. 2. Definition and Policy.
(a) The term “individual subject to this order” shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy …
Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be –
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
21. The reference in Section 3(a) to “an appropriate location” for the detention of persons subject to the order includes, in the events which have happened, the detention facility at Guantanamo Bay. A major theme of these appeals consists in the appellants’ contention that if they are extradited there is a real prospect that they will be made subject to Military Order No 1 by a determination of the President under Section 2(a) and thereafter detained indefinitely, it may be at Guantanamo Bay, pursuant to Section 3, and/or put on trial before a military commission pursuant to Section 4. Were that to happen they would suffer violations of their rights under Article 5 of the European Convention on Human Rights (“ECHR”) (no detention save on strict conditions) and Article 6 (the right to a fair trial before an impartial and independent tribunal).
22. The district judge found that given the allegations against the appellants it would be open to the President of the United States to designate them as “enemy combatants”, which in this context is a shorthand for the application of the criterion set out in Section 2(a)(1)(ii) of Military Order No 1. The judge also found that their exposure to Military Order No 1, if that were to happen, would involve violations of their Convention rights …
23. None of these conclusions is challenged before us by the US government, nor, as I understand it, were they controversial in the court below … Each appeal accordingly proceeds on the premise that if subjected to Military Order No 1 following his extradition, the appellant would suffer violations of his Convention rights, notably those guaranteed by Articles 5 (no detention without trial) and 6 (fair trial), and it may be Article 3 (prohibition of inhuman and degrading treatment and torture).
24. Yet in each case the judge found that the appellant’s ECHR rights would not in fact be violated upon his extradition. He did so principally (there were other points, as I shall show) because of the effect, as he found it to be, of Diplomatic Notes issued out of the United States’ Embassy in London.
The Diplomatic Notes
25. In Mr Ahmad’s case Diplomatic Note No 25 was issued on 23 March 2005 … In Mr Aswat’s case Diplomatic Note No 114 was issued on 20 December 2005. In both cases the Notes were before the district judge and considered by him. The terms of Diplomatic Note No 25, which was the first in time, are as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America…
Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.
Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant …”
The Note in Mr Aswat’s case did not refer to the death penalty. The offences for which extradition was sought are not so punishable.
26. In his decision of 17 May 2005 in Mr Ahmad’s case the district judge said this:
“I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”
The judge’s conclusions in Mr Aswat’s case were to the same effect.
The Course of these Proceedings: The Appeal Points Outlined
28. There are four points common to both appeals, which I may describe in barest outline as follows, but must of course explain more fully:
1) There is a substantial risk that if extradited each appellant would face detention and/or trial by military commission under Military Order No 1, and thus suffer violations of his Convention rights.
2) There is a like risk that each appellant would be subjected to what is called “extraordinary rendition”, and thus, again, suffer violations of his Convention rights.
3) There is a like risk that each appellant, even if he were remanded for trial by the ordinary federal civilian courts, would be subjected to what are called “special administrative measures” (“SAMs”) which would also involve violations of his Convention rights. In addition there would on this ground be a bar to extradition by force of s.81(b) of the 2003 Act.
4) Any trial, albeit in the ordinary federal civilian courts, would involve evidence obtained by torture in violation of the appellants’ rights under ECHR Article 6.
30. I have also foreshadowed the remaining point in Mr Aswat’s case, which concerns the potential witness Ujaama. The argument is that the terms and circumstances of Ujaama’s plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be coerced: tainted, in effect, by a threat of torture or at least of inhuman and degrading treatment in violation of the standard set by ECHR Article 3. Accordingly it is submitted that the use of his evidence would constitute a flagrant denial of justice and in those circumstances Mr Aswat’s extradition would violate his right to a fair trial under ECHR Article 6. The arguments here overlap with those arising on point (4) above, which I will deal with directly.
Use of Evidence Obtained by Torture at any Trial in the Federal Civilian Courts (Point (4) above)
32. The argument is that at any trial in the United States, it is “inevitable” (Mr Ahmad, skeleton argument paragraph 1.11) that evidence obtained by torture and/or inhuman treatment will be deployed against the appellants. Mr Fitzgerald relies on an affidavit sworn on 5 July 2006 by Mr Clive Stafford Smith, a United States qualified attorney with long and distinguished experience of representing indigent defendants facing the death penalty in the United States, and also persons alleged to be terrorists … He says … that at trials involving alleged Al-Qaida conspirators, such as the appellants, an FBI witness is routinely and inevitably called at the start to outline the history of Al-Qaida and of the defendant’s part in the conspiracy. This material, says Mr Stafford Smith, will in part be based on evidence obtained by torture and other improper means from detainees at Guantanamo Bay, Baghram and other places of secret detention that are not subject to the rule of law. It is contended that to return either appellant to a trial at which evidence obtained in that manner will be deployed against him would be to perpetrate a flagrant denial of justice in violation of ECHR Article 6. Mr Fitzgerald places much reliance on the decision of their Lordships’ House in A v Secretary of State for the Home Department (No 2)  2 AC 221,  UKHL 71, in which Lord Bingham roundly stated (paragraph 52):
“The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention.”
33. Mr Hugo Keith, who appeared with Miss Clair Dobbin for the United States government on Mr Aswat’s appeal, submitted first that this ground of appeal lacked an evidential foundation and second that relevant courts in the United States could be relied on to respect relevant guarantees …
34. The first submission concerns evidential foundation. Mr Stafford Smith’s evidence on this aspect of the case is of necessity general in nature, although he seeks to draw inferences as to the subject-matter of the testimony that would be given at the appellants’ trials … This is no criticism of Mr Stafford Smith, but it means that this court cannot know precisely what the evidence would be. Thus it cannot know to what extent such evidence might be controversial, or in what particular circumstances it might have been obtained. In A (No 2) Lord Bingham continued (paragraph 53):
“The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:
Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture …”
It is to be noted that Article 16(1) does not apply the exclusionary rule of evidence contained in Article 15 (which I have already set out) to “other forms [short of torture] of cruel, inhuman or degrading treatment or punishment”.
35. The distinction between torture and other forms of inhuman or degrading treatment is of some importance given the limits of Mr Stafford Smith’s testimony. Mr Fitzgerald accepted in reply that the appellants could not be specific. In the absence, unavoidable as it is, of information as to the precise circumstances in which any evidence to be given in US courts against these appellants would or might have been obtained I am not prepared to hold that it would be distinctly obtained by torture, so that process against the appellants would be tainted by violation of ECHR Article …
36. Mr Keith’s second submission concerned respect given by United States courts to relevant guarantees. Two points arise on this part of the case. The first is that while, as I understand it, it is common ground that the law of evidence in federal criminal cases in the United States does not generally contemplate the exclusion of testimony on the basis that it has a tainted source, we may reasonably suppose that the court would arrive at a proper decision upon any submission made to it that particular evidence should be excluded by force of Article 15 of the Torture Convention. The second is that the court would no doubt be amenable to argument that the weight to be accorded to any particular evidence was greatly lessened, perhaps extinguished, by virtue of its having been obtained by other forms of ill-treatment. I venture to cite some words of my own in the Court of Appeal in A (No 2) – with great diffidence, given the House of Lords’ very firm overruling in that case of the majority conclusion (to which I was party) in the Court of Appeal on the issue of admissibility of evidence obtained by torture. However not least having regard to the distinction accepted by Lord Bingham between torture and other forms of inhuman or degrading treatment, I think Mr Keith was justified in submitting that this passage (so far as it relates to non-torture cases) was not disapproved in their Lordships’ House:
[I expressed reservations about the decision of this court in Ramda  EWHC Admin 1278] “… as regards the impact on the fairness of a prospective trial of the fact that the trial court may be asked to consider evidence against the accused (not consisting in a statement made by himself) which was or may have been obtained by oppressive conduct. If we are looking, as article 6 in terms enjoins us, at
fairness, why is fairness not satisfied by the availability of robust argument going to the weight of the tainted evidence?”
37. I conclude that the case on point (4) set out above is not made out and the appellants are not entitled on account of it to be discharged pursuant to s.87 of the 2003 Act.
Mr Aswat’s Case: The Witness Ujaama
38. It is convenient to deal with this argument next, because of its affinity with point (4) which I have just addressed. I have already summarised the submission. In barest outline it is that the terms and circumstances of Ujaama’s plea agreement mean that his evidence, if given at any trial of Mr Aswat, would be tainted by threat of torture or at least of inhuman and degrading treatment, and in those circumstances its use would constitute a flagrant denial of justice in violation of Mr Aswat’s right to a fair trial under ECHR Article 6.
39. There is a good deal of evidence before the court about Mr Ujaama …
43. In any case Mr Keith was I think right to submit that even if Mr Ujaama was threatened with SAMs and with indefinite detention, this falls short of a finding that he was in fact subjected to cruel, inhuman or degrading treatment. Article 15 of the Torture Convention has, I think, no application on Mr Aswat’s own case; and A (No 2) (not least given paragraph 53, which I have read) does not indicate that Mr Ujaama’s being called to the witness-box would be repugnant either to any principle of the common law or to ECHR Article 6. I recognise that this court has held (Ramda  EWHC (Admin) 1278, paragraph 22) that trial on evidence obtained in breach of ECHR Article 3 can amount to a flagrant denial of justice contrary to Article 6, but in my judgment the material before us cannot be said to support such an outcome in the event that Mr Ujaama were to give evidence against Mr Aswat. The reliability of any such evidence would, no doubt, be well tested by vigorous cross-examination.
44. For all these reasons there is in my judgment no force in Mr Fitzgerald’s argument on behalf of Mr Aswat concerning the potential witness Mr Ujaama.
Subjection to Military Order No 1 (Point (1) above)
51. On this part of the case the court is invited to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not.
54. The appellants’ case has been put in various ways but may fairly be summarised in three propositions:
i) The Diplomatic Notes do not bind the President (and would not bind any future President) and are “ultra vires”, or are legally unacceptable undertakings not to apply the general law of the requesting state.
ii) The Diplomatic Notes are drafted in such a way that it would be possible for the United States authorities to apply Military Order No 1 to the appellants after their return, and yet claim that there was no breach of the undertakings in the Notes.
iii) As a matter of fact, the Notes are not to be relied on.
(i) Legal Status of the Diplomatic Notes
55. A good deal of evidence has been deployed by the appellants to support this part of their case … Now, there is plainly a difference between the question whether the Notes are in some sense legally binding on the United States authorities including the President, and the question whether in fact they would be honoured. The first of these questions, being one of law, cannot depend upon any evidence unless the issue is whether the Notes are binding by force of the domestic law of the United States; in which case evidence about that law’s effect would be admissible, because of the common law rule that foreign law is a matter of fact. Evidence is, of course, also receivable as to the conditions of international practice in relation to the giving of assurances such as are contained in the Notes.
56. However as I understand it there is no issue of domestic American law. The United States government does not rely on any rule of domestic law giving binding or enforceable effect to the assurances set out in the Notes. The real question is whether in all the circumstances, against the background of relevant international law and practice, this court should accept the Notes as being in fact effective to refute, for the purposes of the 2003 Act, the claims of potential violation of Convention rights and associated bars to extradition.
57. There is, however, more to say at this stage about the law. First, the proposition that the Notes are in some sense ultra vires is in my judgment misplaced. There is no suggestion that they were issued in defiance of some binding rule of United States law with whose application they are inconsistent. That might have been the case if Military Order No 1 (which, I accept, is part of the corpus of United States law) required the President to designate any foreign national to whom the Section 2(a) criteria applied. But it does not; the President has a discretion so to designate. There is therefore no inconsistency between the terms of the Notes and the terms of the Order. The force of the point is illustrated by an observation made by my Lord Walker J in the course of the argument concerning Mr Ujaama: on Mr Fitzgerald’s own case the fact, demonstrated by the plea agreement, that the Americans were prepared to forego the subjection of Mr Ujaama to military custody (in his case, as he is a United States national, at the North Carolina brig) shows that they do not regard such a course of action as mandatory or inevitable in every case where it might, on the facts, be put into effect.
58. Nor is it, I think, suggested that this ultra vires argument is supported by any notion that the Notes were in some sense unauthorised by the President or the United States government. Nor could it be. The Notes, as I have said, were issued by the United States Embassy in London. The Ambassador “is the mouthpiece of the Head of his home State and its Foreign Minister, for communications to be made to the State to which he is accredited” (Oppenheim’s International Law, Ninth Edition, Vol 1, paragraph 483). Mr Keith in his skeleton argument in Mr Aswat’s case at paragraph 2.18, citing authority of the International Court of Justice (Advisory Opinion as to the Customs Arrangements between Germany and Austria, 5 September 1931: Series A/B 41, p.47), correctly submits that international law recognises the use of Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law such a Note is regarded as binding on the State that issues it. This, and this only, is the sense in which the Notes are indeed “binding”.
59. Next, Mr Fitzgerald would have us disregard the Notes, or at least treat them with considerable circumspection, because of what he says is the effect of the decision of their Lordships’ House in Armah v Government of Ghana and Anor  AC 192 …
60. Mr Fitzgerald principally relies on what was said by Lord Upjohn, but I may first note these observations of Lord Reid at 235G–236B:
“[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.”
The material passage from Lord Upjohn’s speech is at 262G–263E:
“[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964. The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account. The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances. In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.”
61. In light of this authority Mr Fitzgerald submits that it would be wrong in principle for the court to rely on the Diplomatic Notes as a basis for concluding that Military Order No 1 would not be applied to the appellants. I do not think this is right. First, it is in my view significant that the “undertaking” in Armah was given by counsel in court. No doubt it was given on instructions, but it cannot have carried the weight or authority of a formal Diplomatic Note issued out of the State’s Embassy. As I have shown, State to State assurances, taking the form of such Notes, possess a recognised status in public international law. State to State assurances are commonly given in extradition matters, for example to demonstrate the requesting State’s loyalty to the specialty rule. Moreover such assurances are specifically contemplated on the face of Article IV of the 1972 UK-USA Extradition Treaty (which I have set out) in relation to the death penalty. The Note in Mr Ahmad’s case contained, in terms, Article IV assurances.
62. Secondly, an important theme of the reasoning in Armah consists in their Lordships’ concern that a foreign State might in effect offer to suspend its ordinary law as the price of obtaining a fugitive’s return. No such concern can arise in this case. On the contrary, the Diplomatic Notes contain assurances that the ordinary law – prosecution before the civilian Federal Court “with the full panoply of rights and protections” – will be applied. The position might well be different if the President were obliged by the terms of Military Order No 1 to designate any persons falling within the Section 2(a) criteria. But as I have already said the President has a discretion to designate; and where he does so, he must determine (Section 2(a)(2)) that “it is in the interest of the United States that such individual be subject to this order”. On any view these are special or exceptional measures. The argument which Lord Upjohn puts in the mouth of an appellant to the English court has no place here on the facts. Armah was distinguished both in Launder (No 2)  QB 998 (see per Simon Brown LJ as he then was at 1006G) and in Lodhi (No 1)  EWHC Admin 178 (see per Brooke LJ giving the judgment of the court at paragraph 88) on the ground that in contrast to Armah there was no question of the relevant undertaking being to do other than apply the ordinary law of the requesting State.
(ii) Scope of the Diplomatic Notes
64. This part of the argument depends on the words “[p]ursuant to his extradition” in each of the diplomatic notes. The point is crisply articulated in Mr Fitzgerald’s skeleton argument for Mr Ahmad as follows:
“[T]he Note only provides that ‘pursuant to extradition’ the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not ‘pursuant to extradition’ because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request.”
65. The implicit suggestion appears to be (“No doubt this wording was carefully chosen”) that the possibility of such action being taken was in the minds of the American authorities at the time when the Diplomatic Notes were drafted and issued. If so, it is a very serious allegation of bad faith. It amounts to an accusation that the Notes are nothing but a smoke screen to conceal the United States’ true intentions. It is little wonder that Mr Fitzgerald did not pursue the suggestion explicitly. I shall have more to say about the Notes’ reliability under the next head – (iii) – but I should make it clear at once that there is not a sliver of justification, in any of the evidence we have seen, for so grave a charge.
66. I should however acknowledge this assertion made in Mr Fitzgerald’s skeleton argument in Mr Aswat’s case (paragraph 54):
“It is important to recognise that the Appellant’s primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event.”
67. In argument Mr Fitzgerald submitted that the risk of such a decision would continue even if Military Order No 1 were amended or replaced. In so far as the case sought to be made is not one of bad faith, but merely a suggestion that if the appellants are extradited they may hereafter encounter the fate described because new information becomes available, then as it seems to me it is contradicted by Article XII of the 1972 Treaty which I have set out. It was submitted that Article XII, on its plain terms, governs only detention in the “territory of the requested party” and therefore does not cover detention in Guantanamo or elsewhere in the world. In order to send the detainee to such a destination, however, it would be necessary first to detain the person in question within the territory of the United States. Another submission was that information presented to the President after the extradition as to the risk posed by the Appellants in the view of the FBI or CIA would necessitate the President’s consideration of the application of Military Order No 1 to the Appellants. However by Article XII further action can be taken only in relation to crimes or “matters arising” after the extradition. Absent an accusation of bad faith it is plainly to be presumed that the United States will be loyal to their Treaty obligations. It is to be noted that a Treaty entered into by the United States becomes part of its domestic law upon its coming into effect, without more: see Article VI of the US Constitution. If of course either appellant were accused of an entirely fresh crime or other matter said to have been committed after the extradition, different considerations might arise (see Article XII(2)); but such a contingency cannot form the genesis of any complaint in these proceedings.
(iii) The Diplomatic Notes’ Reliability
68. But Mr Fitzgerald does not merely submit that the United States authorities might expose the appellants to the rigours of Military Order No 1 while asserting, by reference to the language of the Diplomatic Notes, that the assurances there given are not violated. He submits that the United States might simply breach the assurances in any event. The appellants’ evidence (principally the affidavits of Mr Loflin and Mr Stafford Smith) is presented in such a way as to intertwine this argument with (i) above (relating to the Notes’ legal status). But in my judgment we must address fair and square the submission of fact that the Notes would not be honoured. The issue is closely allied to that which arises on Mr Fitzgerald’s second principal contention, namely that both appellants face a substantial risk of being subjected to what is called “extraordinary rendition”, not least given the district judge’s finding that “in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible”. However it is convenient to deal with that separately because of the structure of the arguments as they were presented before us.
72. … it is asserted that given his past approach to the duties of his office the President would feel free to disregard the assurances in the Notes, “particularly in the light of any new information or evidence that was provided to him by the FBI or the security services as to the alleged risk posed by [either] Appellant” (Mr Ahmad skeleton, paragraph 3.17).
73. It is also said (but it is really part of the same point) that the President has demonstrated his commitment to the use of military commissions …
74. In short we are asked, as I have already said, to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not. How is this court to provide a conscientious response to such an argument? The starting point, I think, is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40:
“[T]here is (still) a fundamental assumption that the requesting state is acting in good faith.”
The assumption, of course, may be displaced by evidence. We must consider whether it is displaced here.
75. I have already referred to Mr Keith’s submission that the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors  EWHC 200,  3 AER.239 and Welsh and Thrasher  EWHC 156,  3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue – or perhaps a particular application of the same issue – being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point. In Thrasher Ouseley J said (paragraph 35):
“First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed.”
In Bermingham I said (paragraph 142):
“In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence … it is “essential to determine … whether the surrendering state would regard the prosecution as a breach” … This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.”
76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants’ extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them. Acts of the US executive such as have attracted the kind of criticisms described and levelled by Mr Stafford Smith and Mr Loflin, being, however, acts touching only the internal affairs of the United States, cannot in my judgment begin to constitute a premise from which this court should conclude that the Diplomatic Notes will not be fully honoured.
77. This view is lent some support by the circumstances of a case to which both Mr Keith and Mr Hardy referred. Mr Al-Moayad, a Yemeni national, was arrested in Frankfurt on 10 January 2003, a warrant having been issued on 5 January 2003 by the United States District Court for the Eastern District of New York. Mr Al-Moayad was wanted for having, among other things, supplied money and equipment to terrorist groups including Al-Qaida. The United States requested his extradition and there were extradition proceedings before the Higher Regional Court at Frankfurt. What was referred to as a “verbal note” was issued by the American Embassy providing an assurance that if he were returned Mr Al-Moayad would not be prosecuted before a military tribunal pursuant to Military Order No 1. The Frankfurt court allowed the extradition (I use this expression since, unsurprisingly of course, there is no exact fit between the procedural terminology here and in the German courts). Mr Al-Moayad brought a constitutional complaint before the Federal Constitutional Court. We have an English language text of the judgment downloaded from the internet, bearing the serial number 2 BvR 1506/03. Various points were taken with which we need not be concerned. The relevant finding is at paragraph 76:
“… [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.”
78. So Mr Al-Moayad was extradited to the United States. There is a postscript. We have a copy of a piece in the New York Times for 29 July 2005. It shows that Mr Al-Moayad was, indeed, not subjected to Military Order No 1. He was tried before a federal court in Brooklyn. After a five week trial he was convicted of conspiracy to support Al-Qaida and other offences and sentenced to the maximum penalty of 75 years imprisonment. Condign punishment: but no subjection to Military Order No 1.
80. On this part of the case I conclude for all the reasons I have given that the district judge was right to place confidence in the Diplomatic Notes.
Extraordinary Rendition (Point (2) above)
81. Mr Fitzgerald has supplied us with a document entitled “Rendition Appendix”. It collates primary materials to be found elsewhere in the papers before us. One meaning (but not the only meaning) of the practice, or alleged practice, of extraordinary rendition consists in the transfer of a person, by the agency or with the complicity of the United States, to a foreign State in circumstances where there is a substantial risk that the individual in question will be subjected to torture or cruel, inhuman or degrading treatment.
82. Both appellants assert that if returned they will be at risk of being subjected to this practice …
86. The position of the United States is that while it does carry out renditions, it does not practise extraordinary rendition. However the premise of this position is a particular understanding of what extraordinary rendition involves. Mr Appleton, who is a federal prosecutor in the United States Attorney’s Office for the District of Connecticut, says this (affidavit of 24 February 2005, paragraph 13):
“… I am advised by the Office of the Legal Adviser and the Office of International Affairs that the United States is committed to complying with its international law obligations under the [Torture Convention]. Consistent with that treaty, the United States does not expel, return, or extradite individuals to countries where the United States believes it is more likely than not that they will be tortured.”
This “more likely than not” is of some importance. As Mr Fitzgerald submits it is a palpably different test of the prospect of being tortured than that of substantial risk, which is applied in the Strasbourg jurisprudence on ECHR Article 3 (see Ullah, to which I have referred above). Thus it is said that the American approach as Mr Appleton describes it is perfectly consistent with the use by the United States authorities of rendition to States where there is a substantial risk, though not a probability (“more likely than not”) of torture – and thus, in effect, extraordinary rendition.
87. The appellants’ case, then, is that they may be subjected to extraordinary rendition with at least a substantial risk of torture in a third State, particularly if they are acquitted in the federal civilian court; and the Diplomatic Notes provide no assurance against such an eventuality.
88. If either appellant, having been acquitted in the federal court, were then removed from the United States to a third country where he faced a substantial risk of torture (never mind “more likely than not”), that would in my view be a plain violation at least of the spirit, and I would have thought the letter, of Article XII of the 1972 Treaty and (whatever one makes of the precise terms of the Diplomatic Notes) a gross breach of the trust subsisting between the United States and the United Kingdom.
89. The United States has submitted to the United Nations Committee Against Torture that
“The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States.”
So the view taken is that the Article 3 obligation does not apply to the position of persons seized outside the United States and their alleged treatment in centres in third countries, but applies strictly in relation to those within United States territory. As for the construction of Article 3(1), I have already set out its terms. It has the words “… where there are substantial grounds for believing that he would be in danger of being subjected to torture”. That language is plainly close to the postulate of a substantial risk. Thus rendition of either appellant to a third country where he would face a substantial risk of torture would constitute a violation of Article 3 on at least one, perfectly viable, interpretation of the Article.
90. There is in fact no evidence whatever that any person extradited to the United States, from the United Kingdom or anywhere else, has been subsequently subjected to rendition, extraordinary or otherwise. All the evidence concerning the appellants themselves is that they are sought for the purposes of being tried in the federal civilian courts, and not for any collateral purpose. If convicted they may face the prospect of lengthy sentences. I have indicated that the issue on extraordinary rendition (point (2)) is closely allied to that relating to Military Order No 1 (point (1)) with which I have dealt at greater length, and so it is. I would reject Mr Fitzgerald’s case on point (2) for reasons much the same as I have given for rejecting his case on point (1). I regard the material before us which relates to the Americans’ treatment of instances where no question of extradition is involved as a wholly insufficient basis for concluding that the United States in these present cases would perpetrate so great a breach of trust (and I think of their legal obligations) as would be involved in their subjecting these appellants to extraordinary rendition.
“SAMs” (Point (3) above)
91. Mr Loflin (second affidavit, 24 January 2005, paragraph 4) describes Special Administrative Measures (“SAMs”) as
“special confinement measures that can be imposed on prisoners when there is a ‘substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.’ [the quotation is from the United States Code of Federal Regulations] These measures may include, but are not limited to, housing the defendant in administrative detention, and/or limiting the defendant’s correspondence, visiting rights, contacts with the media, or telephone use.”
… Mr Fitzgerald submits that if they were applied to either appellant they would significantly impair his ability properly to prepare his defence and would amount to inhuman and degrading treatment. Mr Loflin’s evidence is to the effect that he knows of no case in which a non-Muslim defendant has been subjected to SAMs …
92. There are thus, on analysis, three points relating to SAMs. (1) By the imposition of SAMs each appellant would be “punished, detained or restricted in his personal liberty by reason of his … religion” and so there would be a bar to extradition under s.81(b) of the 2003 Act. (2) They would also be prejudiced in the preparation and/or conduct of their defence, principally by inhibitions placed upon communication with their legal advisers, and so there would be violations of ECHR Article 6 quite apart from s.81(b). (3) And there would be violations of ECHR Article 3 given that SAMs involve or may involve solitary confinement.
93. It is convenient to deal first with ECHR Article 3. I did not understand Mr Fitzgerald to press this aspect as part of the forefront of his case. It is clear from the jurisprudence of the European Court of Human Rights that solitary confinement does not in itself constitute inhuman or degrading treatment. Regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measures, its duration, the objective pursued and its effects: McFeeley v UK 3 EHRR 161, paras 49–50. Applying this approach, the evidence before us does not begin to establish a concrete case under Article 3. The argument on SAMs is really about the other two points.
95. I turn next to the point on ECHR Article 6. As is well known the United States Constitution vouchsafes a guarantee of fair trial whose terms, as I observed in Bermingham (paragraph 110), are strikingly similar to those of ECHR Article 6. The Sixth Amendment provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
This does not expressly protect lawyer/client privilege, but it must be inherent in the measure. In any event recent authority of the Supreme Court cited by Mr Loflin himself … affirms its importance: Swidler & Berlin v United States 524 US 399, 403. And the imposition of SAMs is open to judicial scrutiny: US v Reid 369 F. 3d 619 (1st Circuit 2004); US v Ali; E.D. Va Oct 24, 2005; US v El-Hage 213 F. 3d 74 (2nd Circuit 2000).
96. The United States has provided express evidence that the appellants’ Sixth Amendment rights and attorney/client privilege will be honoured and protected … While Mr Fitzgerald submits that the district judge “erred in his assessment of the effect of SAMs on the trial process” … there is as I understand it no challenge to his specific finding that “there is judicial control to see that communication passing between the defendant and his lawyers, although monitored, does not reach the eyes and ears of those prosecuting”…
97. In my judgment the evidence does not begin to show that the imposition of SAMs, were that to occur (as it may), would mean that either appellant would be “prejudiced at his trial” (s.81(b) of the 2003 Act), or that it would violate the appellants’ rights under ECHR Article 6, not least given that a flagrant denial of justice has to be shown. Nor, for good measure, does it show (what Mr Fitzgerald must I think establish) that the United States authorities would knowingly perpetrate a violation of the Sixth Amendment to the American Constitution.
98. There remains the submission that the appellants would be subjected to SAMs on a discriminatory basis. The appellants’ case to that effect depends upon Mr Loflin’s evidence that he knows of no instance, and none has been identified, in which SAMs have been imposed upon a non-Muslim defendant. Ms Killion denies that SAMs are imposed only on Muslims …
99. … like the district judge I am quite unable to infer from Mr Loflin’s statement that SAMs are applied only to Muslims that the United States authorities deliberately flout the Regulations so as to punish Muslim defendants for their religion.
100. I would reject this part of Mr Fitzgerald’s argument, like the others.
101. For all the reasons I have given I would dismiss these appeals. Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith”. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.
102. This court acts on the faith that the United States will be true to the spirit and the letter of the Diplomatic Notes and the obligations of the 1972 Treaty. It goes without saying that they will be true to the US Constitution. The terms of this judgment express the legal expectations and understanding of the United Kingdom court. I apprehend that these will be well fulfilled and honoured when the appellants are extradited.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2003, in the Zakaev case
, the UK Bow Magistrates’ Court considered the case of a Russian national whose extradition was sought by the Russian Federation in order to prosecute him for war crimes allegedly committed in Chechnya. The Court considered “that the events in Chechnya in 1995 and 1996 amounted in law to an internal armed conflict.”
The Court held:
[T]here has been a delay in bringing these proceedings of some 7 years. In view of the gravity of the allegations … that delay in itself is [not] sufficient to warrant a finding of abuse of process. However, there are other factors to be added to that delay. In particular, there is the delay in the proper investigation of these alleged offences and the fact that Government officials and others were led to believe that there were no charges pending against the defendant. The initial request to Denmark included allegations in relation to the Moscow theatre siege and to the murder of Father Philip, on which it is now conceded there was no evidence whatsoever. When those factors are added together the inevitable conclusion is that it would now be unjust and oppressive to return Mr Zakaev to stand his trial in Russia.
… [I]t is more likely than not that the motivation of the Government of the Russian Federation was and is to exclude Mr Zakaev from continuing to take part in the peace process and to discredit him as a moderate.
… [T]here is a substantial risk that Mr Zakaev would himself be subject to torture. … [S]uch punishment and detention would be by reason of his nationality and political opinions. [Therefore,] Mr Zakaev … should not be returned to face trial in the Russian Federation.
United Kingdom of Great Britain and Northern Ireland
In 2009, in the Brown case, the England and Wales High Court of Justice (Divisional Court) was called upon to decide an appeal by four Rwandese nationals whose extradition from the United Kingdom had been requested by the Government of Rwanda in order to try them for genocide before a Rwandan domestic court. Lord Justice Laws, who gave the judgment to which both members of the court had contributed, summarized the main issue before the court as follows:
[T]he principal focus of this judgment is the appellants’ claim that they would not receive a fair trial in Rwanda. The GoR [Government of Rwanda] proposes that they be tried for genocide in the High Court of Rwanda, a court of criminal jurisdiction established in 2004. It is to be contrasted with the local gacaca
courts, and also, of course, with the ICTR. The appellants submit that if they are returned to Rwanda for trial before the High Court, they will not receive a fair trial.
The appeal was allowed and the Secretary of State’s order for extradition was quashed. Lord Justice Laws set out the relevant law, namely Article 6 of the 1950 European Convention on Human Rights (ECHR) and the 2003 UK Extradition Act. He stated:
21. The 2003 [UK Extradition] Act contains two provisions which in effect impose fair trial requirements in the courts of the requesting State (being a category 2 territory) in extradition cases. [Category 2 territories are designated by order of the Secretary of State and include countries to which the framework decision of the Council of the European Union on the European arrest warrant (2003) does not apply.] We repeat them for convenience. First, s.81:
81 A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
87(1) … [The judge] … must decide whether the person’s extradition would be compatible with the Convention [i.e. ECHR] rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
23. Clearly the kind of bias contemplated by s.81(b), at least so far as it affects the trial process, might readily also constitute a denial of the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal” pursuant to Article 6 [ECHR]; and to that extent there is a potential overlap between the provisions. We find it convenient to concentrate on Article 6.
Fair Trial – the Law: the Test for Article 6
24. Under Article 6, the question for the court is whether, if they are returned to Rwanda for trial before the High Court, the appellants would suffer a real risk of a flagrant denial of justice – “flagrant” because in such a case the ECHR rights apply exceptionally and by extension, to protect the individual from being consigned by a State Party to the ECHR to another territory where he might suffer ill-treatment in violation of the Convention standards. In R v Special Adjudicator ex parte Ullah  2 AC 323 Lord Bingham said at paragraph 24:
While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 [ECHR] as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment … Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state …
We should also cite the cross-reference at paragraph 10 of Lord Bingham’s opinion (and, for the context, we will set out paragraph 9):
9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant’s Convention [ie ECHR] rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person’s Convention rights in that other territory. I call these “foreign cases”, acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory. The question was bound to arise whether the Convention could be relied on to resist expulsion or extradition in a foreign case. It is a question of obvious relevance to these appeals, since the appellants do not complain of any actual or apprehended interference with their article 9 [ECHR] rights in the United Kingdom.
10. A clear, although partial, answer to this question was given in Soering v United Kingdom (1989) 11 EHRR [European Human Rights Reports] 439, a case in which the applicant resisted extradition to the United States to stand trial in Virginia, contending that trial there would infringe his right to a fair trial under article 6 of the European Convention and that his detention on death row, if convicted and sentenced to death, would infringe his rights under article 3 [ECHR]. Neither the conduct of the trial nor the conditions of detention would, of course, be within the control or responsibility of the United Kingdom. The [European] Court [of Human Rights] did not reject the applicant’s complaint under article 6 as ill-founded in principle, but dismissed it on the facts in paragraph 113 of its judgment:
“113. The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.”
Lord Justice Laws examined whether the judge at the lower court had applied the correct test. Lord Justice Laws stated:
Fair Trial – the Law: Did the Judge Apply the Wrong Test?
33. As we have stated, the legal test by which the fair trial issue has to be judged is whether the appellants would suffer a real risk of a flagrant denial of justice if they were extradited for trial in Rwanda. It is contended on their behalf that the judge misunderstood or misapplied the test. …
34. We should … record our concern at certain passages in the judge’s judgment. At paragraphs 369–372 the judge cited Ullah at some length. Accordingly one would ordinarily suppose that he had the correct test well in mind. However at paragraph 373 this appears: “It is clear, therefore, from these judgements that the test is a very high one and that the burden of proof lies on the defence on a balance of probabilities.”
And at paragraph 536:
The burden is on the defence to satisfy the court that there is a real risk of a flagrant denial of justice or fair trial. On the evidence produced they have failed to satisfy on a balance of probabilities the high test which has been set. Reliance was placed on the amicus brief of HRW [Human Rights Watch], but the conclusions reached do not justify the reliance placed on it when seeking to cross the high hurdle which the defence have to. In its conclusions, when dealing with the question of fair trial the brief states on seven occasions that the matters in question … may lead to a violation. It is put no higher than that and does not come near the higher Article 6 [ECHR] test.
The test is correctly stated in the opening sentence of paragraph 536. Notwithstanding that, the judge appears to have directed himself that the appellants carried the burden of proving on the balance of probabilities that there would be a flagrant denial of justice if they were extradited. But “real risk” does not mean proof on the balance of probabilities. It means a risk which is substantial and not merely fanciful; and it may be established by something less than proof of a 51% probability. The approach is the same as that taken in refugee cases, where the asylum seeker has to show a real risk that if he is returned to his home State he will be persecuted on any of the grounds set out in the 1951 United Nations Refugee Convention (see Sivakumaran
 1 AC 958). We think that despite his citation of the correct test the judge fell into error here. He may have been distracted by the second part of the test – “flagrant denial”: so much is suggested by his repeated references to the “high” or “very high” test.
Lord Justice Laws examined whether the applicants’ right to a fair trial would be violated because witnesses who could give important evidence for the defence will be too afraid of possible reprisals to testify. Having reviewed evidence on this matter, Lord Justice Laws concluded that “if they were extradited to face trial in the High Court of Rwanda, the appellants would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses.”
Lord Justice Laws then considered the independence and impartiality of the Rwandan judiciary. He held:
[T]he question whether a court is independent and impartial cannot be answered without considering the qualities of the political frame in which it is located. We have had no day-by-day details from the GoR [Government of Rwanda] of the conduct of the Rwandan High Court’s business. No details of trials; of defences run, successfully or unsuccessfully; no details of any of the myriad events that show a court is working justly. We have reached a firm conclusion as to the gravity of the problems that would face these appellants as regards witnesses if they were returned for trial in Rwanda. Those very problems do not promise well for the judiciary’s impartiality and independence. The general evidence as to the nature of the Rwandan polity offers no better promise. When one adds all the particular evidence we have described touching the justice system, we are driven to conclude that if these appellants were returned there would be a real risk that they would suffer a flagrant denial of justice. It follows that the appeals of all four appellants under s.103 of the 2003 [Extradition] Act, against the decision of the judge to send the case to the Secretary of State must be allowed. They are accordingly entitled to be discharged, and the Secretary of State’s order for extradition must automatically fall.
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
[A]rticle 391 of the Penal Procedure Code provides: “Extradition is governed by the provisions of this Title, by the treaties, conventions and international agreements to which the Republic is a party”.
… [T]he Bolivarian Republic of Venezuela and the Republics of Bolivia, Colombia, Ecuador and Peru signed the Bolivarian Extradition Agreement on 18 July 1911 in Caracas … [which provides]:
Article 5.- Extradition shall not be granted in the following cases:
a) If according to the laws of one of the States, the sentence does not exceed by six months the maximum applicable sentence for the offence of which the person is accused, and for which extradition has been requested.
b) When, according to the laws of the State to which the [extradition] request has been sent, the statute of limitations on the proceedings or the punishment against the person … has run out.
c) If the individual whose extradition is requested has already been judged and set free, or has served his or her sentence, or if the acts for which he or she is accused have been the object of an amnesty or a pardon.
In addition, Article 8 of the mentioned Treaty provides:
Article 8.- The extradition request must be accompanied [with the necessary documentation] …
By virtue of the provisions of the present Treaty, the extradition of fugitives will be in conformity with the extradition laws of the State to which the request has been made.
In no case will the extradition take place if a similar act is not punishable by the law of the Nation [to which the extradition has been] requested.
[emphasis in original]
In determining whether the acts of the case were considered offences in Venezuela thus permitting extradition, the tribunal held:
The Venezuelan Penal Code, meanwhile, criminalizes and punishes the crimes of rebellion, kidnapping, extortion, seizure and diversion of aircraft and wrongful death
in Articles 153, 452, 461, 368 and 411 respectively … [This] fulfills the principle of “dual criminality” (that the offences for which the [extradition] request [was formulated] are also offences in Venezuelan law), as required by Article 6 of the Venezuelan Penal Code in order to grant extradition.
[emphasis in original]
In concluding on whether extradition can be granted, the tribunal held:
[T]his Supreme Tribunal of Justice considers it pertinent to grant the extradition of … [the accused], requested by the Government of Colombia … for the offences of extortive kidnapping, and seizure and diversion of aircraft, which … are punished by the national legislation of both the requested State, the Bolivarian Republic of Venezuela, as well as the requesting [State], the Republic of Colombia; which are classified as offences giving rise [to extradition] … in the Extradition Treaty; which are not time-barred, and would not make the [extradited person] liable to a death or life sentence.
Similarly, Article 271 of the Constitution provides:
Article 271.- In no case can the extradition of foreigners be denied [when they are] responsible for committing the offences of … international organized crimes, acts against the public heritage of other States and against human rights. …
The Chamber, in compliance with the abovementioned constitutional provision, … grants the extradition of … [the accused]
for the alleged commission of the ordinary offence of extortive kidnapping
, which … also constitutes, in general, [the offence of] international organized crimes, and of terrorism
in particular … It notes, in addition, that the natural judges to determine if Ballestas
is … [criminally responsible] are in Colombia, as it is the place where the offences under investigation were committed. It is there where the evidence of the offences of which Ballestas
is accused can be found. The Chamber notes that the sentence to be applied, if criminal responsibility is declared, must not exceed thirty years as established in Article 44(3) of the Constitution of the Bolivarian Republic of Venezuela. It is so decided.
[emphasis in original]
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated:
Criminal offences that can be interpreted in the article 4 of the Convention against Torture can be the sufficient basis for extradition of the suspect to the state requesting the extradition irrespective of whether Bosnia and Herzegovina has or has not a treaty on extradition with that state.
In an annual report issued in 2003 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
The IOG [Interdepartmental Operations Group] ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. Another of its purposes is to ensure that Canada complies with its international obligations. This includes the … extradition or surrender of war criminals … as well as cooperation with the international tribunals.
In an annual report issued in 2004 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
The Canadian Government can choose from several approaches in dealing with war criminals, including investigation and criminal prosecution in Canada, extradition to foreign governments, surrender to international tribunals, denial of visas outside Canada or of admission to Canada, exclusion from refugee protection in Canada, revocation of citizenship, admissibility hearings and removal from Canada.
In an annual report issued in 2005 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
When a potential war criminal does manage to enter Canada or is found already living in Canada, the partners in the War Crimes Program have recourse to a number of enforcement measures, including … extradition, criminal investigation and prosecution, and revocation of citizenship.
In 1999, the Extradition Act
was amended to allow Canada to enter into agreements for extradition on a case-by-case basis. The amendments also allow for surrender to international tribunals. Requests for extradition or surrender are not made public unless and until the Attorney General of Canada gives the authority to proceed.
In an annual report issued in 2006 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
If persons suspected of involvement in atrocities do arrive in Canada or are found living in Canada, the program partners assess the situation to determine the most appropriate remedy. The partners have complementary roles in applying these remedies: criminal proceedings under the Crimes Against Humanity and War Crimes Act, on which the RCMP [Royal Canadian Mounted Police] and the DOJ [Department of Justice] work closely together; enforcement under the IRPA [Immigration and Refugee Protection Act] led by the CBSA [Canadian Border Services Agency], including deportation and denial of access to and exclusion from refugee protection; and citizenship revocation proceedings under the Citizenship Act handled by CIC [Citizenship and Immigration Canada]. The CBSA only deals with modern cases. The DOJ leads the development of World War II cases with the assistance of the RCMP. The DOJ also handles extradition and surrender to international tribunals under the Extradition Act.
When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition, surrender to international tribunals, criminal investigation and prosecution, and revocation of citizenship.
In 1999, the Extradition Act
was amended to allow Canada to enter into agreements for extradition on a case-by-case basis and to allow for surrender to international tribunals. Requests for extradition or surrender are not made public unless the Attorney General of Canada gives the authority to proceed.
In an annual report issued in 2007 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following: criminal proceedings jointly administered by the DOJ [Department of Justice] and the Public Prosecution Service of Canada (PPSC) based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act; enforcement of the IRPA [Immigration and Refugee Protection Act] led by the CBSA [Canada Border Services Agency], including denial of access to and exclusion from refugee protection and deportation; citizenship revocation led by CIC [Citizenship and Immigration Canada] and the DOJ; and extradition to foreign states and surrender to international tribunals under the Extradition Act, led by the DOJ.
When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition to foreign states, surrender to international tribunals, criminal investigation and prosecution, and the revocation of citizenship …
In 1999, the Extradition Act
was amended to allow Canada to enter into agreements for extradition on a case-by-case basis and to allow for surrender to international tribunals. Requests for extradition or surrender are not made public unless the Attorney General of Canada gives the authority to proceed.
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
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 …
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.
In 2010, in its sixth periodic report to the Committee against Torture, Canada stated:
Prosecution of persons alleged to have committed torture
44. As noted in Canada’s Fifth Report, an interdepartmental group, the Program Coordinating Operations Committee (PCOC) (formerly entitled the Interdepartmental Operations Group), coordinates investigation of allegations of crimes against humanity and war crimes under Canada’s War Crimes Program. The Committee ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. It also ensures that Canada complies with its international obligations.
46. If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following:
(a) Criminal proceedings that are based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act …
(b) Enforcement of the IRPA [Immigration and Refugee Protection Act], including denial of access to and exclusion from refugee protection and removal proceedings;
(c) Citizenship revocation;
(d) Extradition to foreign states and surrender to international tribunals under the Extradition Act.
In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:
51. The Government of Canada re-introduced Bill C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, on June 16, 2011, in order to combat the threat posed by human smuggling …
52. With the new bill, Canada will continue to uphold its obligations under the Convention, including the commitment not to employ torture as defined in Article 1 or to expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing the individual would be in danger of being subjected to torture in accordance with Article 3 [of the 1984 Convention against Torture] …
129. With respect to the extradition context, after a judge has determined that the evidence provided by the requesting state is sufficient to justify the committal of the person sought for extradition, the Minister of Justice must personally decide whether the person sought ought to be surrendered … Pursuant to section 44 of Extradition Act, the Minister of Justice must refuse surrender if the surrender would be unjust or oppressive or if the person sought will face a substantial risk of torture in the country seeking extradition. This test has been found by the Supreme Court of Canada to be sufficient to respect the principle of non-refoulement.
180. Canada’s War Crimes Program is based on the dual underlying purposes of ensuring that Canada will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as making an effective contribution to the global effort to reduce and eventually eliminate impunity for such crimes. A committee composed of members of each department of the War Crimes Program reviews and scrutinises all allegations of genocide, crimes against humanity and war crimes, including torture, to ensure compliance with existing and emerging international obligations to extradite or prosecute.
[footnote in original omitted]
In 2012, the Department of Citizenship and Immigration issued a press release entitled “Minister Kenney applauds Alberta court ruling on accused war criminal Jorge Sosa”, which stated:
The Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, issued the following statement:
The Government of Canada welcomes yesterday’s decision by the Alberta Court of Appeal upholding an extradition order against accused Guatemalan war criminal Jorge Sosa. The Court’s decision clears the way for Mr. Sosa to be extradited to face perjury charges in the United States concerning his past military activities in Guatemala.
In addition to the immigration charges he faces in the U.S., Jorge Sosa is also wanted for war crimes in his native Guatemala, where he has been accused of participating in one of the bloodiest events of the brutal Guatemalan civil war – the notorious massacre of more than 200 villagers at Dos Erres in 1982. Mr. Sosa has evaded justice for far too long.
In 2007, in its initial report to the Committee against Torture, Chad stated:
186. There are several instruments governing extradition in Chad, namely the Code of Criminal Procedure, the General Agreement of 12 September 1961 on Cooperation in Judicial Matters and the Franco-Chadian agreement (No. 138/CSM of 6 March 1976) on mutual legal assistance.
187. These instruments govern the conditions and effects of extradition and the procedures to be followed and, more generally speaking, cases in which extradition is not permitted.
188. Under article 447 of the Criminal Code, no extradition is permitted:
When the crime or offence has been committed on Chadian territory;
When the crime or offence, although not committed on Chadian territory, has been prosecuted and formed the subject of a final judgment in Chad;
… When under the laws of the requesting or the requested State legal action has become statute-barred before the request for extradition is made;
If there has been an amnesty in the requesting or the requested State.
197. Chad is now a party to the  Convention against Torture. It cannot undertake an extradition without taking into account all relevant considerations, including, where present, the existence in the requesting State of a pattern of systematic, grave, flagrant or mass violations of human rights. This is a moral duty and a necessary safety precaution.
Regarding extradition for the crime of torture, Chad stated:
297. The criminal legislation of Chad does not envisage or punish torture as a criminal act. Consequently the discovery within the country of a suspected perpetrator of an act of torture committed outside the country cannot give rise either to extradition or to prosecution by the Chad authorities, even where there is a cooperation or mutual judicial assistance agreement between Chad and the requesting State.
298. Under article 445 of the Code of Criminal Procedure the Government of Chad may hand over to foreign governments at their request any person not of Chadian nationality in the territory of the Republic who is the subject of prosecution introduced in the name of the requesting State or of a sentence handed down by the courts of that State. However, extradition is granted only if the offence which has given rise to the request was committed outside the country by a person who is a non-national of that State and when the offence is one which, under Chadian law, may be prosecuted in Chad even if the offence was committed outside the country.
299. The last paragraph of article 445 goes still further. It stipulates that: “In no case shall extradition be granted if the act is not punishable under Chadian law with a penalty of criminal or délit rank.” Since torture is neither a crime nor a délit under Chadian law, not only can no request for extradition be met but in addition it will no longer be possible to undertake proceedings of any kind. Thus the introduction of the provisions of the  Convention against Torture into the domestic legal order is necessary for purposes of trial or extradition of perpetrators of acts of torture.
300. However, if a specific act of torture in respect of which extradition is requested is deemed to be an act giving rise to a penalty of criminal or délit rank under the provisions of domestic instruments (such as the administration of a harmful substance during interrogation by a public official), extradition will be granted, since such acts are punishable under article 245 of the Chadian Criminal Code.
301. The request for extradition would then only have to meet the conditions laid down in the Criminal Code and the requirements of reciprocity.
In 2002, in its third periodic report to the Committee against Torture, Chile stated:
Chile has included in bilateral extradition treaties which have been concluded or have entered into force since 1994, clauses in which offences relating to torture are incorporated as extraditable offences. These treaties are listed below:
(b) Treaty on extradition and judicial assistance in criminal matters between the Republic of Chile and the Kingdom of Spain, which was concluded on 14 April 1992 and entered into force in January 1995. In article 5, this treaty excludes extradition for political or related offences, which will not include “war crimes and crimes committed against peace and the security of mankind, in conformity with international law”;
(c) Extradition treaty between the Republic of Chile and Australia, which was signed on 6 October 1993 and entered into force in January 1996. In article IV relating to exceptions to extradition, the treaty excludes extradition for political offences, among which “war crimes and crimes committed against peace and the security of mankind, in conformity with international law” are not included.
Upon accession to the 1977 Additional Protocol I, China stated:
At present [i.e. in 1983], Chinese legislation has no provisions concerning extradition, and deals with this matter on a case-by-case basis. For this reason China does not accept the stipulations of Article 88, paragraph 2, of Protocol I.
In 2007, during a debate in the Sixth Committee of the UN General Assembly, a representative of China stated:
At the 59th session, the ILC [International Law Commission] considered the second report of the Special Rapporteur on the topic of the obligation to extradite or prosecute (aut dedere aut judicare), including one draft article. We wish to express appreciation to the Special Rapporteur Mr. Galicki for his outstanding work. Now I’d like to comment on a few questions.
First, I believe that the application of the obligation to extradite or prosecute should not compromise the judicial jurisdiction of States, nor should it affect the immunity of State officials from criminal judicial jurisdiction.
Second, on the scope of application of the obligation to extradite or prosecute, draft article one stipulates that the present draft articles shall apply to the establishment, content, operation and effects of the alternative obligation of States to extradite or prosecute persons under their jurisdiction. The Chinese delegation supports in principle the alternative nature of the obligation to extradite or prosecute as contained in the draft article, namely, States have the alternative to extradite or prosecute. As for the so-called third alternative related to the jurisdiction of other international judicial organs, we take a cautious approach, but we believe that it is necessary to set necessary limits to the alternative obligations of States. We suggest that the draft articles stipulate that in opting for extradition or prosecution, States should abide by the relevant rules on jurisdiction priorities. For example, it is necessary to ensure the priority of the State where the crime occurred and the State of nationality of the suspect in exercising jurisdiction.
We also suggest a clarification of the meaning of “jurisdiction” in draft article one concerning the State obligation to extradite or prosecute persons under their jurisdiction. It is our understanding that the above jurisdiction refers to territorial jurisdiction or actual control of a State and does not include extraterritorial jurisdiction of a State over individuals outside its territories on the basis of the principles of personal jurisdiction, protective jurisdiction or universal jurisdiction, because the obligation to extradite or prosecute is based on the actual jurisdiction or control of the State over an individual. In light of this, we suggest that the wording “under their jurisdiction” in draft article one be changed to “on their territories or under their actual jurisdiction or control”, or that corresponding explanation be made in the commentary.
Third, on the nature of the obligation to extradite or prosecute, my delegation believes that the obligation to extradite or prosecute is basically a treaty obligation and States undertake this obligation mainly on the basis of treaty provisions. However, if the crime to which the obligation to extradite or prosecute is applied is a crime under the customary law universally acknowledged by the international community, the obligation to extradite or prosecute may also become an obligation under international customary law.
Fourth, on crimes covered by the obligation to extradite or prosecute, in the view of my delegation, they should primarily include international crimes and transnational crimes endangering the common interest of the international community as confirmed by the international law, and serious crimes endangering national and public interest as stipulated by domestic law. Making a non-exhaustive list of crimes in the draft articles can be an option.
Fifth, my delegation believes that the core issue of this topic is the conditions for the extradition and prosecution obligations of States. We suggest that the Commission study the applicability of the conditions for the prohibition of extradition contained in the extradition rules of various States and the conditions for prosecution provided for in the criminal procedural laws of States. Then the Commission can see if it is necessary to establish a set of common criteria for extradition and prosecution. The relations between this obligation and other rules of international law, including universal jurisdiction, can also be further studied.
According to the Report on the Practice of Croatia, Croatia has concluded treaties on extradition with a number of States. The report also notes:
According to Article 134 of the Croatian Constitution [which provides that “international agreements concluded and ratified in accordance with the Constitution and made public are part of the Republic’s internal legal order and are in terms of legal effect above law”], Croatian courts should directly apply the European Convention on Extradition with its two additional protocols and also existing bilateral agreements on extradition.
In 2009, in a statement before the Sixth Committee of the UN General Assembly on the obligation to extradite or prosecute and treaties over time, the representative of Cuba stated:
The Cuban delegation would like to emphasise that the obligation to extradite or prosecute is aimed at combating impunity, by ensuring that persons accused of certain crimes are denied safe haven and are brought to trial for their criminal acts.
We consider that the obligation to extradite or prosecute is based primarily on international treaties; and in the case of certain crimes of the most serious nature, it has acquired a character that may be considered customary.
Some of the crimes that include this obligation include genocide, war crimes, crimes against humanity … [and] torture.
Democratic Republic of the Congo
In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states: “Legal implications of sexual violence as an international crime
… International crimes imply international cooperation regarding the … extradition … of individuals convicted for such crimes.”
In 2010, in its initial report to the Committee against Torture, Djibouti stated:
86. The prohibition on extraditing a person to another State where he is in danger of being tortured can be deduced, by interpretation, from all the judicial cooperation agreements concluded by Djibouti with other States. …
87. … As a party to the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Djibouti may not extradite a person without taking all relevant facts into consideration, including, where appropriate, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights. This is a safety issue and a moral obligation.
88. … Djiboutian law prohibits the extradition of any individual to a State where he is in danger of being tortured. …
118. … [Extradition agreements] … include a formal prohibition on extraditing a person … for expressing certain views, on grounds of race, religion or nationality.
119. Thus, article 4 of the extradition agreement between Djibouti and France stipulates that extradition … may be refused if the requested State has serious reasons to believe that the extradition request was made in order to prosecute or punish a person on grounds of race, religion, nationality or political belief or that the person’s situation may be aggravated for one or other of these reasons.
In 2012, in its fourth periodic report to the Human Rights Committee, Georgia stated:
10. Georgia adopted the [L]aw on International Cooperation in Criminal Matters in 2010, which entered into force together with the new Criminal Procedure Code of Georgia on October 1, of the same year. The new Law covers international cooperation, including extradition. Accordingly, extradition procedures are generally carried out on the basis of bilateral or multilateral treaties binding for Georgia. However, in case of non-existence of [an] extradition treaty with a relevant state, the Ministry of Justice of Georgia is authorized to conclude an ad hoc agreement with the appropriate foreign authorities and thereby carry out extradition procedures (Article 2). Article 29 §1 of the Law on International Cooperation in Criminal Matters excludes extradition if the competent authorities of Georgia have substantial grounds to believe that the extradition of a person is requested for the purpose of prosecuting or punishing that person on account of his race, nationality, ethnic origin, religious belief, political opinion or other similar reasons. Therefore, in case of the circumstances referred to above, the competent Georgian authorities find extradition inadmissible.
11. In addition, the Parliament of Georgia adopted the Law on Refugees and Humanitarian Status in December 2011, which fully envisions the principle of non-refoulement. … Article 21 §3 [of that Law] states that it is inadmissible to expel or extradite from Georgia a person holding a refugee or humanitarian status to the country where there is a reasonable ground to believe that the person will be the victim of torture or other cruel, inhuman or degrading treatment. …
113. The Law of Georgia on International Cooperation in Criminal Matters represents an internal legislative act regulating issues concerning extradition. This law entered into force in October 2010 and is in full compliance with Georgia’s international agreements and international standards. According to the above-mentioned Law, the extradition of a person shall be granted with respect to those offences which are punishable under the laws of Georgia and the foreign State by deprivation of liberty for a period of at least one year or by a more severe penalty. Where a conviction has occurred, the punishment awarded must be for a period of at least four months (Article 18.1).
114. The Law of Georgia on International Cooperation in Criminal Matters sets out important safeguards with respect to extradition. Namely, extradition is not allowed if the offence for which extradition is requested is punishable by death penalty, if there exists reasonable suspicion that the extradition of the person is requested for the purpose of [making] him/her liable for or punishing him/her on the ground of his/her race, nationality, ethnic origin, religious or political views or due to other similar circumstances, if there exists reasonable suspicion that a person will be subjected to torture, cruel, inhuman, degrading treatment or punishment, if a crime in relation to which an extradition is requested is regarded as a political offence by Georgia, if the requesting State rendered the judgment in absentia
of that person and if a person was not properly informed about court hearings or if an accused person was not provided with proper time for p[repar]ation and the minimum rights of defence.
In 2012, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Iraq stated:
Accused persons may be extradited to a requesting State in the event that an extradition treaty between the requesting State and the Government of the Republic of Iraq is in force, in accordance with the Code of Criminal Procedure (Act No. 23 of 1971) which prohibits extradition for political or military offences.
According to the Report on the Practice of Israel, Israel has signed extradition agreements with numerous countries. It has also cooperated with other countries for the extradition, mainly for trial in Israel, of suspected Nazi war criminals.
At the International Conference for the Protection of War Victims in 1993, Kuwait expressed the view that States should cooperate for the extradition of war criminals.
According to the Report on the Practice of Malaysia, the extradition of persons having committed grave breaches of the 1949 Geneva Conventions is governed by Malaysia’s Extradition Act. Under this act, if there is no extradition treaty with the requesting State, the Minister of Home Affairs may permit the extradition if he/she deems fit.
In 2001, with regard to the Cavallo case, the Mexican Foreign Relations Secretariat issued a directive on this matter, stating:
Based on Article 28, part XI, of the Federal Public Administration Law and in conformity with articles 30 of the International Law of Extradition, and articles 1, 9, 14 and 25 of the Treaty of Extradition and Mutual Assistance on Criminal Matters between the United Mexican States and the Kingdom of Spain, it is resolved: … to grant the extradition of the individual in question, Ricardo Miguel Cavallo, known as Miguel Angel Cavallo, requested by the government of Spain through its embassy in Mexico, to face charges of genocide, torture and terrorism.
In 2009, in its fourth periodic report to the Committee against Torture, Morocco stated:
While extradition, in principle, is the norm in all ordinary crimes, if the Moroccan authorities … [have] reason to believe that a request for extradition lacks objective grounds, and that the request has to do with the person of the individual himself for considerations relating to his ethnicity, race, nationality, or religious or political beliefs, and that such considerations would put his life or liberty at risk or may lead to torture, extradition is denied (article 721 of the Code of Criminal Procedure). A number of bilateral agreements concluded between Morocco and some European and Arab countries take into account such considerations. A case in point is the agreement with the Arab Republic of Egypt … and the agreement with the Kingdom of Belgium.
Morocco further stated:
73. In accordance with article 8 of the Convention against Torture, Moroccan law contains a series of legal provisions relating to crimes of torture or the attempt to use torture when dealing with extradition mechanisms as part of international judicial cooperation.
74. While provisions under Moroccan law governing the extradition of criminals do not make a specific reference to the crime of torture because the Code of Criminal [P]rocedure does not enumerate in detail the offences that may be the subject of extradition, the Code does, however, recognise the offences and acts punishable under the laws of the requesting state.
75. As such, perpetrators of crimes of torture, under Moroccan law, are subject to extradition in accordance with article 4, paragraph 1, of the Convention.
76. The same principle applies to the bilateral agreements Morocco has entered into with other states. Moroccan law, does not exclude perpetrators of crimes of torture from extradition when a state with which Morocco has entered into a bilateral agreement, makes such a request. Exclusions only apply to political, military and customs offences.
77. Morocco has received and responded to a number of requests for extradition, some of which relate to acts of assault and violence, from a number of states. One example is the request in 2008 by the French judicial authorities to their Moroccan counterparts to hand over a Dutch national accused of committing acts of violence and assault. The request was granted.
78. Under bilateral extradition agreements, there is no prohibition on the handing over of perpetrators of acts of torture except when it comes to observing the provisions of international conventions. Moroccan law gives the application of international instruments precedence over domestic law when it comes to international judicial cooperation, having ascertained that persons extradited would not be tortured in the requesting state. This reflects Morocco’s commitment to extend judicial cooperation in fighting crime, especially acts of torture that may be committed by public officials entrusted with enforcing the law.
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 3 of the Convention
94. To date, there have been no cases in Senegal of expulsion, refoulement or extradition of a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
95. Act No. 71-77 of 28 December 1971 covers the conditions, procedures and consequences of extradition in situations where no relevant treaty applies, as well as any other aspects not expressly regulated by any such treaty.
96. Thus, the legislation on extradition expressly gives primacy to international law and, in particular, to article 3 of the Convention, which is considered a self-executing provision.
Article 5 of the Convention
114. By adopting Act No. 2007-05 of 12 February 2007, which amends the  Code of Criminal Procedure, the State of Senegal has taken the necessary measures to establish the competency of the Senegalese criminal courts to try all acts of torture in cases where the alleged offenders are present in Senegalese territory if no order for their extradition has been issued.
115. In line with this law, any foreigner who has been accused of committing or aiding in the commission of any of the crimes mentioned in article 295-1 of the [1965 Penal] Code outside Senegalese territory may be tried under Senegalese law or laws applicable in Senegal if he or she is under Senegalese jurisdiction or if one of the victims resides in the territory of Senegal, or if the Government secures the alleged offender’s extradition.
Article 7 of the Convention
120. As mentioned above, the only known case concerning an alleged perpetrator of acts of torture residing in Senegalese territory is the case of Hissène Habré, former President of the Republic of Chad. In this case, the State of Senegal has undertaken, in conformity with the mandate entrusted to it by the African Union, to conduct a trial, to be heard by Senegalese judges, in compliance with the universally recognized fundamental legal principle of a just and fair trial. …
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;
(2) When the crime or offence is of a political nature or if the circumstances indicate that the extradition request is politically motivated. Acts committed during a rebellion or civil war by one of the parties involved in order to further its cause are extraditable only if they constitute acts of extreme barbarity or destructiveness prohibited by the laws of war and only after the civil war has ended;
(3) When the crime or offence was committed in Senegal;
(4) When the crime or offence, even if committed outside Senegal, has been prosecuted in Senegal and a final decision rendered;
(5) When, according to the laws of the requesting State or the requested State, the time limit for bringing an action has passed before the extradition request is served, or the time limit for the enforcement of the sentence has passed before the arrest of the individual whose extradition is requested and, generally, whenever the criminal proceedings have been completed.
Article 8 of the Convention
129. Even though none of the treaties on mutual judicial assistance, in particular extradition, concluded by Senegal with third States contains a specific list of offences for which a person may be extradited, this in no way constitutes a barrier to the extradition of perpetrators of offences classified as torture upon the request of another State.
130. The Senegalese State does not make extradition conditional on the existence of a treaty. Act No. 71-77 of 28 December 1971 applies to all requests from States with which Senegal does not have a judicial assistance agreement.
131. With the exception of the cases mentioned above, extradition is possible if:
(a) The acts in question are defined as an offence and carry criminal or correctional penalties of at least 2 years of imprisonment;
(b) The acts in question are punishable offences under Senegalese law.
Article 9 of the Convention
132. Senegal provides extensive judicial assistance during all stages of proceedings related to torture in conformity with the treaties on mutual assistance to which it is party.
II. Implementation of the conclusions and recommendations of the Committee
B. Compliance with the Committee’s decision concerning communication No. 181/2001
Recapitulation of facts and procedures
237. Mr. Hissène Habré, who was the President of the Republic of Chad from 1982 until 1990, was ousted on 1 December 1990. Following a stay in Cameroon, he moved to Senegal, where he has been ever since.
238. In January 2000, [a victim] and others submitted a complaint together with an application for indemnification to the senior examining judge of the Dakar special regional court …
239. On 3 February 2000, the senior examining judge indicted Mr. Hissène Habré …
241. On 4 July 2001, the Indictment Division dismissed the charges, thereby putting an end to the legal proceedings against him, on the grounds that the judge dealing with the case lacked jurisdiction.
242. On 20 November 2001, the Court of Cassation rejected the appeal lodged by the complainants on 7 July 2001 against the Indictment Division’s ruling of 4 July 2001, thus reaffirming that decision.
243. The Court of Cassation advanced the following reasoning for its decision:
Article 5, paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, provides that each State party shall take such measures as may be necessary to establish its jurisdiction over the offences set out in article 4 in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him or her;
Consequently, article 79 of the  Constitution cannot be applied since the implementation of the Convention requires Senegal to adopt prior legislative measures;
No procedural text confers universal jurisdiction upon Senegalese courts to try presumed perpetrators of or accomplices to acts covered by the legislation of 28 August 1996, which aligned Senegalese law with article 4 of the Convention, in cases where such persons are found on Senegalese territory if the acts in question were committed outside Senegal.
244. Subsequently, the victims brought the same case before the Belgian courts. On 19 September 2005, the Belgian examining judge, after an investigation that lasted for years, issued an arrest warrant for Mr. Habré. On the same day, Belgium sent an extradition request to Senegal.
245. On 25 November 2005, the Indictment Division of the Dakar Court of Appeal, in response to the request to extradite Mr. Hissène Habré to Belgium, concluded that it was not competent to do so for the following reasons.
246. “Article 101 of the Constitution of Senegal and the High Court of Justice Organization Act of 14 February 2002 instituted exceptional legal proceedings in respect of any proceedings against the President of the Republic.
247. The Indictment Division, as an ordinary court, cannot extend its jurisdiction to investigating and prosecuting a Head of State for acts allegedly committed during his or her time in office.
248. Therefore, the lack of jurisdiction must also exist in respect of the extradition request, since legal proceedings can only be instituted after basic inquiries have been made, which include having the accused appear in court and be questioned. Moreover, given that the extradition itself would be the result of legal proceedings and enforcement measures delegated by the requesting State to the State receiving that request, it must, at every stage of the judicial process, comply with the rules governing the competence and structure of criminal courts, which are a bastion of national sovereignty. Mr. Hissène Habré’s immunity does not exempt him from criminal responsibility, however, but is merely procedural in nature, as in the case of the arrest warrant issued for Yoro Abdoulaye Ndombassi on 14 February 2002 by the International Court of Justice in the case involving the Democratic Republic of the Congo and Belgium.
249. This immunity remains in place even after a president ceases to hold office, regardless of his or her nationality or of the existence of any mutual assistance treaty.
250. It may be inferred from these comments that the Indictment Division lacks jurisdiction over cases concerning the legality of proceedings against a Head of State or the validity of an arrest warrant issued for a Head of State.”
251. In the light of that decision, Senegal referred the case to the African Union, which, on 2 July 2006, pursuant to the recommendations of a committee of eminent African jurists appointed in January 2006, requested Senegal to try Mr. Hissène Habré on behalf of Africa.
253. Prior to the African Union’s adoption of this position, the complainants who had referred the case to the senior examining judge of the Dakar special regional court had, on 18 April 2001, also submitted a complaint to the Committee against Torture under article 22, paragraph 7, of the Convention against Torture. The Committee submitted its recommendations to the Government of Senegal on 17 May 2006.
254. The Committee, drawing on all of the aforementioned legal decisions, recalled that, in accordance with article 5, paragraph 2, of the Convention, “each State Party shall […] take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him […]”.
256. The Committee also recalled that: “under article 7 of the Convention, ‘the State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution’”.
257. “It notes that the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition. The alternative available to the State party under article 7 of the Convention exists only when a request for extradition has been made. The State party has the power to choose between proceeding with extradition and submitting the case to its own judicial authorities for the institution of criminal proceedings, the objective of the provision being to prevent any act of torture from going unpunished.”
261. It went on to say that: “Moreover, under article 7 of the Convention, the State party is obliged to submit the present case to its competent authorities for the purpose of prosecution or, failing that, to comply with [an extradition] request, or, should the case arise, with any other extradition request made by another State, in accordance with the Convention.”
264. The State of Senegal has taken note of the decision.
265. Following the decision of the African Union, President Abdoulaye Wade made a solemn vow before his peers to have Mr. Hissène Habré prosecuted in Senegal.
266. This strong political commitment reaffirms the legal obligations entailed by the Convention against Torture, which Senegal ratified on 21 August 1987 and which is the legal basis for the proceedings against Mr. Hissène Habré.
269. All the necessary substantive and procedural legislative amendments have now been made to give full effect to the provisions of the Convention and to ensure that Mr. Hissène Habré can have a just, fair and speedy trial in Senegalese courts presided over by Senegalese judges.
In 2010, in its report of 23 July, Spain’s Council of Ministers stated:
Extradition to Bosnia of Veselin Vlahovic for crimes against humanity
The Council of Ministers has approved the surrender in extradition to Bosnia and Herzegovina of Veselin Vlahovic, for crimes against persons and property protected in the event of armed conflict.
Vlahovic’s extradition is sought for having committed grave crimes against humanity during the war in Bosnia and Herzegovina between 1992 and 1995. He has been accused, as a member of the armed forces of the República Srpska, of terrorising the population of Grbavica (Sarajevo), persecuting the civilian population of non-Serb origin, personally killing a large number of people, committing pillage, rape, abuses, torture and other crimes.
The European Convention on Extradition of 13 December 1957 applies to Vlahovic, who is being held on remand in custody.
In 2010, in its report of 1 October, Spain’s Council of Ministers stated:
Continuation of the proceedings for the extradition to Bosnia of Veselin Vlahovic
The Council of Ministers has approved the continuation of the proceedings for the first extension of the passive extradition of the Montenegrin citizen Veselin Vlahovic, requested by the authorities of Bosnia and Herzegovina.
[Vlahovic] is suspected of having committed grave crimes against humanity during the war in Bosnia and Herzegovina as a member of the armed forces of the República Srpska, between 1992 and 1995. Concretely, the new facts state that in 1992 [Vlahovic], together with other members of the so called “White Angels”, took fifteen members of a family to a Jewish cemetery in Novo Sarajevo where they were machine gunned, including among those killed a boy of six and a woman. In July of the same year, in Grbavica he removed a couple from their home and killed them both.
The facts described constitute a war crime against the civilian population under the Criminal Code of Bosnia and Herzegovina, which constitutes a crime against persons or property protected in the event of armed conflict under the Spanish Penal Code in force.
[Vlahovic]’s extradition was also requested by the Serb authorities, for the crime of murder and by the Montenegrin authorities for the crime of violent robbery and war crimes.
The surrender of Veselin Vlahovic is proposed, in the first instance, to the authorities of Bosnia and Herzegovina as the European Convention on Extradition of 1957 applies to all three requesting States, because the crimes committed by [Vlahovic] in Bosnia and Herzegovina are both quantitatively and qualitatively of relatively greater gravity. This State sent a request for extradition through the diplomatic channel on 8 March 2010, before the other two States. The extradition took place on 25 August 2010.
In 2011, in its report, Spain’s Council of Ministers stated:
Extension of extradition to Bosnia of Veselin Vlahovic for crimes against humanity
The Council of Ministers has approved the continuation of the procedure for the second extension of the extradition to Bosnia and Herzegovina of Veselin Vlahovic, accused of committing grave crimes against humanity during the war in Bosnia and Herzegovina from 1992–1995.
The second extension of the extradition requested by the authorities of Bosnia and Herzegovina for prosecution refers to facts not included in the original request. They now claim that he is suspected of having carried out in Sarajevo (Bosnia), between April and June 1992, together with other members of the so called “White Angels” acts against the non-Serb civilian population including kidnapping, extortion, threats, thefts, injury, rapes and murders.
On 25 August 2010 he was surrendered to the authorities of Bosnia and Herzegovina for a previous extradition request.
The acts described constitute the crime of war crimes against the civilian population under the Penal Code of Bosnia and Herzegovina, which corresponds to the crime against protected persons and property in the event of armed conflict under section 607 onwards of the Spanish penal code in force.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
33. Article 3 of [the 1984] Convention against Torture prohibits … extradition of a person where there are substantial grounds for believing that such person faces the threat of torture in the receiving State. Sri Lanka as a policy does not extradite persons where such threats exist and there have been no instances of persons in Sri Lanka seeking to refute an extradition order based on allegations of torture.
34. Additionally, no allegations have been levelled against the State for any action in breach of this principle. Any such concerns will be dealt with at the Executive level.
35. The Extradition Law No. 8 of 1977 of Sri Lanka incorporates restrictions on extradition which includes the possibility of punishment, detention or restriction by reasons of race, nationality or political opinion. This provision covers the situations envisaged by Section 3 of  CAT [Convention against Torture]. Further there are adequate provisions under the laws governing Immigration and Emigration, and Extradition to honour this principle.
38. Article 7 of the  Convention against Torture states that if the authorities should decide not to extradite the accused then it should submit the case to its competent authorities for the purpose of prosecution. This provision is reflected in sections 7, 8, and 9 of the CAT Act [Convention against Torture Act(1994)].
[footnotes in original omitted]
Sri Lanka further stated:
47. … Sri Lanka has also undertaken to inform any other State having jurisdiction of the offence, or any other State that requests the extradition of the accused, the measures that have been or will be taken to extradite or prosecute such person for that offence.
50. In accordance with Sections 8 of the CAT Act [Convention against Torture Act (1994)], Sri Lanka has amended its extradition law to provide for torture as an extraditable offence. Although as per the Extradition Law of 1977, extradition is conditional on the existence of an extradition treaty, unless the request is made by a commonwealth country, Section 9(2) of the CAT Act provides that the Minister may, in the absence of such an extradition agreement, by order published in the gazette, treat the Convention as an extradition agreement for extradition [in] respect of the offence … [of] torture. Extradition is also possible against those who aid and abet acts of torture.
[footnote in original omitted]
Switzerland’s ABC of International Humanitarian Law (2009) states:
Although international humanitarian law is intended mainly for States and parties to a conflict (e.g. armed groups), many of its provisions must also be respected by individuals. States are obliged to respect the norms, to suppress any violations, and either themselves prosecute persons responsible for grave breaches, in particular of war crimes, or extradite such persons. …
… Furthermore, governments must take all necessary measures to suppress violations. In the case of grave breaches, the States must themselves prosecute the perpetrators, or hand them over to another contracting party for prosecution. …
War crimes are grave breaches of the provisions of the Geneva Conventions
of 1949 protecting persons and objects as well as other serious violations of the laws and customs that apply to an international or non-international Armed conflict
. … States are under an obligation to prosecute or extradite persons suspected of having committed war crimes on their territory.
In 2010, in its second periodic report to the Committee against Torture, Tajikistan stated:
Extradition is prohibited if:
(a) Tajikistan has granted political asylum to the person concerned;
(b) The act cited as grounds for the extradition request is not considered as a crime by Tajikistan;
(c) A sentence has taken effect or a case has been dismissed in relation to the commission of the same offence by the person concerned;
(d) Under Tajik legislation, charges may not be brought or the sentence may not be enforced, on the grounds of extinction or other legal considerations.
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 current UK-USA extradition treaty was agreed in 1972 and ratified in 1976 with supplementary provisions from 1986. It is outdated and can be significantly improved.
The new treaty reflects best modern practice in extradition. In particular, it provides that any crime attracting a maximum sentence of 12 months’ imprisonment or more in both the requesting and the requested state is extraditable rather than containing a list of offences which are extraditable, as the present treaty does. The advantage of that is that it encompasses offences, such as computer related crime, which did not exist when the 1972 treaty was drawn up.
The new treaty brings the evidential rules for requests from the United States into line with those for European countries and simplifies the procedures for the authentication of documents.
As with the existing treaty, the new treaty provides that in death penalty cases, extradition may be refused unless an assurance has been received that no death sentence will be carried out.
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.
The treaty also provides the standard speciality protection against onward extradition or surrender, and we have confirmed our understanding that this covers surrender to the International Criminal Court.
The United States is one of our key extradition partners and there is a significant volume of extradition business between the two countries. It is therefore important that our bilateral extradition treaty should be as effective as possible. I am pleased that it has been possible to reach agreement on the new treaty and that I have the opportunity in person to affirm our commitment to the closest possible co-operation in the fight against terrorism and other serious crime.
In 2011, in its fourth periodic report to the Committee against Torture, Uzbekistan stated:
A person situated in Uzbekistan may be extradited in the following cases:
(a) If the act committed by that person is punishable under the Criminal Code of Uzbekistan with deprivation of liberty for at least 1 year or a more severe penalty, where the purpose of extradition is criminal prosecution;
(b) If the person whose extradition is sought has been sentenced to deprivation of liberty for at least 6 months or a more severe penalty;
(c) Where the foreign State requesting extradition guarantees that the person whose extradition it is requesting will be prosecuted only for the offence referred to in the request and, after the trial has ended and the sentence has been served, will be free to leave the territory of that State and will also not be deported, handed over or extradited to a third State without Uzbekistan’s consent, or subjected to torture, violence or other cruel, humiliating or degrading treatment, or be subject to the death penalty.
In the report, Uzbekistan also 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;
(b) Where the offence in connection with which extradition is sought was committed on Uzbek territory or against Uzbek interests outside Uzbek territory;
(c) Where a final sentence or court ruling or unrevoked decision of an authorized official not to institute criminal proceedings or to terminate them is in place in Uzbekistan in respect of the person sought and for the same act;
(d) Where the request is made on the grounds of an act that is not an offence under Uzbek law;
(e) Where, under Uzbek law, criminal proceedings may not be brought or must be terminated, or a sentence cannot be executed, owing to expiry of the statute of limitations or on other legal grounds;
(f) Where the person sought is prosecuted for the same act in Uzbekistan;
(g) Where the person sought has been granted asylum in Uzbekistan because of the possibility of persecution in the requesting State for reasons of race, religion, citizenship, ethnicity, membership of a particular social group or political opinion.
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.
94. Articles 382 et seq. of the Code of Criminal Procedure govern the extradition procedure, which is jurisdictional rather than administrative. The question of whether or not an extradition request is granted falls to the Supreme Court, and specifically the Criminal Division of Cassation. If it grants a request, that does not imply a judgement of the culpability or not of the person concerned on the basis of an evidentiary procedure of an adversarial nature but is restricted to the consideration of the documents submitted by the requesting State, on the basis that the interests of the State must be served and that the information provided is true and accurate. Subsequently, the details are checked as to both the form and the substance required by treaties and domestic law. The Bustamante Code – the Code of Private International Law annexed to the Convention on Private International Law – and the principles of international law are also applicable.
Guiding principles on extradition in Venezuela
95. The main points are:
(b) Principle of dual criminality. It is absolutely essential that the facts on which a request is based are considered an offence in the legislation of both the requesting and the requested State. By the same token, article 6 of the Criminal Code provides that: “The extradition of a foreigner shall not be granted for any action that is not considered an offence under Venezuelan law.” This ties in with article 49, paragraph 6, of the Constitution, which states: “Due process shall apply in all legal and administrative proceedings and, as a consequence, … 6. No one may be punished for acts or omissions that are not deemed serious offences, ordinary offences or minor offences under existing law.” This principle was the subject of an interpretation by the Attorney General’s Office of the Public Prosecution Service, given in an opinion addressed to the President and other judges of the Criminal Division of Cassation of the Supreme Court, when a request was received for the extradition of a national of the Kingdom of Belgium, JEC, as follows: “With regard to extradition, an essential feature is the requirement of dual criminality, whereby the extradition of the requested person may be granted only where the action of which the person is accused in the requesting country constitutes an offence in the requested country.”
(d) Principle of refusal of extradition in cases carrying the death penalty, life imprisonment or imprisonment for a period exceeding 30 years. In addition to the exceptions relating to the extradition of foreigners, the Venezuelan Criminal Code states that: “The extradition of a foreigner accused of an offence that under the legislation of the requesting country is subject to the death penalty or life imprisonment shall not be granted.” In implementation of this principle, the Supreme Court has granted the extradition of nationals of the United States of America, conditional on a commitment by the requesting Government that, if the person concerned is convicted, he or she will not receive a penalty exceeding 30 years. The Attorney General’s Office of the Public Prosecution Service issued a similar opinion addressed to the President and other judges of the Criminal Division of Cassation of the Supreme Court when a request was made by the Government of the Kingdom of Spain for the extradition of its national MUM, stating that: “In the event that the penalty imposed on the requested person shall exceed 30 years by virtue of the applicability of the rules relating to concurrence of offences, whether a series of offences or a multiple offence, it is required that the Government of the Kingdom of Spain shall provide effective guarantees that the penalty shall not exceed the maximum established under the Venezuelan legal order.”
(e) Principle of the special nature of extradition. According to this principle, the requesting State undertakes to put the requested person on trial only for the act for which his or her extradition has been requested and not for any other offence. It is also inadmissible to replace the offence for which an extradition request has been lodged by another offence, where such conduct is not considered unlawful in the requested State.
(f) Extinction of criminal proceedings or penalty. This constitutes another extremely important element of extradition, since extradition will not be granted where the criminal proceedings or the penalty are extinguished under the domestic law of the requesting or the requested State.
96. It should be noted that, although article 271 of the Constitution provides that under no circumstances may extradition be refused in the case of a foreigner guilty of committing serious crimes, such as money-laundering, impairment of State assets, organized crime, drug trafficking or human rights violations, such a provision does not exempt the requesting State from complying with the requirements established in the treaties that apply in this area; a request may be denied in the absence of such compliance.
100. The Venezuelan State operates with a deep sense of responsibility, accepting extradition as a moral obligation under international law, but it reserves the right to decide whether to grant or refuse it, taking into account the question of whether, in the specific case, it runs counter to the principles of domestic law or does not comply with reason or justice.
101. As stated in the report contained in document CAT/C/33/Add.5, submitted in 2000, the Venezuelan State has clearly established its jurisdiction over the offences covered in article 5 of the Convention in respect of foreign nationals, provided that they are located in the country, that the issue does not relate to political offences or infringements connected with such offences, that the act in question is not deemed an offence under Venezuelan law or that the offence is subject, under the legislation of the requesting country, to the death penalty or life imprisonment. Where a Venezuelan commits the crime of torture in a foreign country, he or she must be tried in Venezuela at the request of the injured party or the Public Prosecution Service.
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.
[footnotes in original omitted]
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
114. 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.
115. Articles 391 et seq. of the Code of Criminal Procedure regulate the extradition procedure, which in Venezuela is judicial and not administrative. The admissibility or otherwise of a request for extradition is decided by the Supreme Court, in particular the Criminal Appellate Division. Its agreement does not imply an appraisal as to the guilt or otherwise of the person concerned following an adversary procedure but is based solely on consideration of the documents communicated by the requesting State, always on the presumption of the good faith of the State and the truthfulness and accuracy of the information provided. The facts of the case are reviewed in terms of both form and substance, as required by applicable treaties and legislation.
116. The Venezuelan State, motivated by a high sense of responsibility, considers extradition to be a moral obligation, in accordance with international law, but reserves the right to grant or refuse it, having regard to whether, in each specific case, there would be any violation of the principles of national legislation and any departure from reason and justice.
[footnote in original omitted]
UN General Assembly
In a resolution adopted in 1946 on extradition and punishment of war criminals, the UN General Assembly:
that Members of the United Nations forthwith take all the necessary measures … to cause [war criminals who have been responsible for or have taken a consenting part in war crimes, crimes against peace and against humanity] to be 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;
and calls upon
the governments of States which are not Members of the United Nations also to take all necessary measures for the apprehension of such criminals in their respective territories with a view to their immediate removal to the countries in which the crimes were committed.
UN General Assembly
In a resolution adopted in 1947 on surrender of war criminals and traitors, the UN General Assembly
Members of the United Nations, which desire the surrender of alleged war criminals or traitors (that is to say nationals of any State accused of having violated their national law by treason or active collaboration with the enemy during the war) by other Members in whose jurisdiction they are believed to be, to request surrender as soon as possible and to support their request with sufficient evidence to establish that a reasonable prima facie
case exists as to identity and guilt.
UN General Assembly
In a resolution adopted in 1969 on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the UN General Assembly:
that the … extradition and punishment of persons responsible for war crimes and crimes against humanity … constitute an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples, and the promotion of international peace and security.
UN General Assembly
In a resolution adopted in 1970 on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the UN General Assembly stated:
Convinced that … the … extradition and punishment or persons guilty of [war crimes and crimes against humanity] – wherever they may have been committed – … are important elements in the prevention of similar crimes now and in the future, and also in the protection of human rights and fundamental freedoms, the strengthening of confidence and the development of co-operation between peoples, and the safeguarding of international peace and security,
2. Calls upon
States to take measures, in accordance with recognized principles of international law, to arrest such persons and extradite them to the countries where they have committed war crimes and crimes against humanity, so that they can be brought to trail and punished in accordance with the laws of those countries.
UN General Assembly
In a resolution adopted in 1971 on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the UN General Assembly:
all States to implement the relevant resolutions of the General Assembly and to take measures in accordance with international law … to ensure the punishment of all persons guilty of [war crimes and crimes against humanity], including their extradition to those countries where they have committed such crimes.
UN General Assembly
In a resolution adopted in 1973 on principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN General Assembly declared:
The United Nations, in pursuance of the principles and purposes set forth in the Charter concerning the promotion of co-operation between peoples and the maintenance of international peace and security, proclaims the following principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity:
5. Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the country in which they have committed those crimes. In that connexion, States shall co-operate on questions of extraditing such persons.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly called upon
“States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to fulfil their obligation to submit for prosecution or extradite those alleged to have committed acts of torture”.
UN Commission on Human Rights
In a resolution adopted in 1988 on prosecution and punishment of all war criminals and persons who have committed crimes against humanity, the UN Commission on Human Rights:
Noting with satisfaction the spirit of co-operation shown by several Member States in facilitating the extradition of war criminals who, in the aftermath of the Second World War, attempted to elude responsibility for their deeds by taking refuge in other countries,
the interest shown in this problem by numerous Member States regarding alleged war criminals residing in their territories and the assistance given by other Member States in providing evidence making possible the extradition and prosecution of such individuals.
UN Commission on Human Rights
In a resolution on impunity adopted in 2002, the UN Commission on Human Rights:
Recognizes that crimes such as genocide, crimes against humanity, war crimes and torture are violations of international law and that perpetrators of such crimes should be prosecuted or extradited by States, and urges all States to take effective measures to implement their obligations to prosecute or extradite perpetrators of such crimes.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the death penalty, the UN Commission on Human Rights:
States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out.
UN Commission on Human Rights
In a resolution adopted in 2003 on impunity, the UN Commission on Human Rights:
that crimes such as genocide, crimes against humanity, war crimes and torture are violations of international law and that perpetrators of such crimes should be prosecuted or extradited by States, and urges all States to take effective measures to implement their obligations to prosecute or extradite perpetrators of such crimes.
UN Commission on Human Rights
In a resolution adopted in 2004 on the question of the death penalty, the UN Commission on Human Rights:
States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out, and calls upon States to provide such effective assurances if requested to do so.
UN Commission on Human Rights
In a resolution adopted in 2004 on impunity, the UN Commission on Human Rights:
that States must prosecute or extradite perpetrators of international crimes such as genocide, crimes against humanity, war crimes and torture in accordance with their international obligations, and urges all States to take effective measures to implement these obligations.
UN Commission on Human Rights
In a resolution adopted in 2005 on the question of the death penalty, the UN Commission on Human Rights:
States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that the death penalty will not be carried out, and calls upon States to provide such effective assurances if requested to do so, and to respect them.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
that States must prosecute or extradite perpetrators, including accomplices, of international crimes such as genocide, crimes against humanity, war crimes and torture in accordance with their international obligations in order to bring them to justice, and urges all States to take effective measures to implement these obligations.
UN Sub-Commission on Human Rights
In a resolution adopted in 2001 on international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN Sub-Commission on Human Rights:
all Governments to implement the relevant resolutions of the General Assembly and other United Nations bodies and to take measures in accordance with international law to … ensure the punishment of all persons found guilty of [war crimes and crimes against humanity], or their extradition to those countries where they have committed such crimes, even when there is no treaty to facilitate that task.
Human Rights Watch
In 1994, in a report on Ethiopia, Human Rights Watch noted:
The SPO [Special Prosecutor’s Office] believes that some 300 government and military officials fled Ethiopia when the Mengistu regime collapsed. Other Dergue officials guilty of human rights violations may have left the country earlier, having fallen out of favor with the regime. The SPO has investigated the whereabouts of at least sixty fugitive officials. The largest number of fugitives are believed to be in the United States and Kenya, with others in Europe and Djibouti … Ethiopia does not have extradition treaties in force with the countries where the fugitives are believed to be.