Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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 jus cogens
of international law.”