by A Ahmed Rasheed
INTRODUCTION
1.
Extradition is the
official process whereby one country transfers a suspected or convicted
criminal to another country.
2.
The
fundamental dilemma posed by the position of States as interested parties in
terrorism cases lies at the base of the political debate concerning the best design
of criminal jurisdiction over terrorism. The terrorism treaties, with their
‘extradite or prosecute” clauses, have fallen far short of resolving the
difficulties concerning jurisdiction over terrorist offences. Because
international terrorism is flawed in so far as it relies on States: non-neutral
perpetrator States, or non-neutral targeted states, or third party States that,
in fact, cannot be presumed to be or will not be perceived to be neutral.
Similarly, because of the political features of international terrorism,
utilizing international forums for the prosecution of terrorist crimes also
does not satisfactorily fulfill the complex requirements for effective
enforcement in this field. The inherent political hindrances to effective use
of international forums for the prosecution of terrorist offences are well illustrated
in the context of the ICC.
3.
The
question of combating international terrorism has dominated the UN agenda since
the 1970s and to be exact it was after the 9/11 attacks in the United States.
And in history the international cooperation to combat terrorism was first
dealt by the League of Nations. The first instrument adopted by the League of Nations,
the resolution of 10th December 1934 states that: “It is the duty of
every State either to encourage nor tolerate on its territory any terrorist
activity with a political purpose”; and “Every State must do all in its power
to prevent and repress acts of this nature and must for this purpose lend its
assistance to governments which request it”.
EXTRADITE OR PROSECUTE
4.
The
obligation to extradite or prosecute is found in a number of treaties. And
survey reveals that there are over 60 multilateral treaties combining
extradition and prosecution as the courses of action to bring suspects to
justice (Chatham House, 2013).
5.
On the
other hand regards the core crimes under international law, the obligation of
aut dedere aut judicare relates only to grave breaches of the Geneva
Conventions and Additional Protocol I. There is no treaty-based obligation to
neither prosecute or extradite for genocide, crimes against humanity, nor–
except in cases of grave breaches of the Geneva Conventions – serious
violations of the laws and customs applicable in armed conflicts of an
international or non-international character (Chatham House, 2013). Also
according to the Internation Law Summary by Chatham House (2013) a common
feature of the different treaties embodying the obligation to extradite or
prosecute is that they impose upon states an obligation to ensure the
prosecution of the offender, either by extraditing the individual to a state
that will exercise jurisdiction or by enabling their own judicial authorities
to prosecute. Beyond that, the provisions greatly vary in their formulation
content and scope, particularly with regards to the conditions for extradition
and prosecution and also the relationship between those two possible courses of
action.
6.
The core
legal common to the sectoral conventions is one which imposes an obligation on
State Parties to “extradite or prosecute” (aut dedere, aut judicare). For that
reason, where an alleged offender is present on the territory of State Party,
having committed a crime in the territory of another State Party, and where the
former does not extradite the offender, to the latter, for any reason, the
former State Party is obliged without exception whatsoever and whether or not
the offence was committed on its territory, to submit the case undue delay, to
its Competent Authorities for purpose of prosecution.
7.
The
underlying rationale of the “extradite or prosecute regime” is that no
terrorist offender should find “safe haven” on the territory on any State
party.
8.
Transnational
Organized Crime (2000) and article 44 of the United Nations Convention against
Corruption (2003) as well as, inter alia, to implement UNSCR 1373 (2001) and
its requirements of denying safe haven to those who finance, plan, support or
commit terrorist acts, and ensuring that such persons are brought to justice.
In reviewing the Manual on the Model Treaty on Extradition, reference is also
made, where necessary and for the purpose of providing a comparative approach,
to the following international instruments:
8.1.
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (1988 Drug Convention).
8.2.
International Convention for the Suppression of the Financing of
Terrorism (1999) (Terrorist Financing Convention).
8.3.
International Convention for the Suppression of Terrorist Bombings
(1997) (Terrorist Bombing Convention).
8.4.
European Convention on Extradition (1957) (Council of Europe 1957
Convention).
8.5.
Convention on Simplified Extradition Procedure between the Member States
of the European Union (1995) (EU 1995 Convention).
8.6.
Convention relating to extradition between the Member States of the
European Union (1996) (EU 1996 Convention).
9.
The objective of the sectoral approach is to increase the network of the
States ratifying these conventions and thereby provide for the widest possible
network of treaty obligations to extradite or prosecute. The “extradite or
prosecute regime” in the sectoral conventions is complimented by provision on
facilitating extradition arrangements between State Parties and the rendering
of mutual legal assistance. And also all the sectoral conventions provide that
in the absence of a bi-lateral extradition treaty between State Parties, the
relevant sectoral conventions could, at the discretion of the State Parties,
constitute the legal basis for extradition amongst them, in respect of the
offences set forth in the convention. Therefore a request for extradition would
not fail, on a procedural technicality, viz by the fact of the absence of an
extradition treaty.
ANALYSIS ON INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORISM BOMBINGS
10.
The above mentioned convention a “New Generation” convention. These
conventions contain wide ranging provision on rendering of mutual assistance
amongst State Parties. Thus the convention provides for, apart from the
traditional provisions of mutual legal
assistance to facilitate criminal proceedings found in the precedent
conventions, wide ranging measures of cooperation like measures to counter
preparation in their respective territories for the commission of the offences
covered by the convention, including measures to prohibit in their territories
illegal activities of persons groups and organizations that encourage,
instigate, organize, knowingly finance or engage in the preparation of offences
relating to terrorist bombings; exchanging of information including on
preventive measures, cooperation and transfer of technology, equipment and
related materials in relation to terrorist bombings.
11.
Before proceeding further it is important to look at what the Article 2
of the convention says:
“ 1. Any person commits an
offence within the meaning of this Convention if that person unlawfully and
intentionally delivers, places, discharges or detonates an explosive or other
lethal device in, into or against a place of public use, a state government
facility, a public transportation system or an infrastructure facility: (a)
with the intent to cause death or seriously bodily injury: or (b) with the
intent to cause extensive destruction of such a place, facility or system,
where such destruction results in or is likely to result in major economic
loss.
2. Any person also commits
an offence if that person attempts to commit an offence as set forth in
paragraph 1.
3. Any person also commits
an offence if that person: (a) participate as an accomplice in an offence as
set forth in paragraph 1 or 2; or (b) organize or directs others to commit an
offence as set forth in paragraph 1 or 2; or (c) In any other way contributes
to the commission of one or more offences as set forth in paragraph 1 or 2 by a
group of persons acting with a common purpose; such contribution shall be
intentional and either be made with the aim of furthering the general criminal
activity or purpose of the group to commit the offence or offences concerned.
12.
Hence in
relation with this article it will be easy for the explanations and analyses of
the follow on articles for the purpose of extradite or prosecute regime. The article
6 says: “Each State Party shall take such measures as may be necessary to
establish its jurisdiction over the offences set forth in article 2”. Whether
the offence is committed in the territory of that state or any other place
which officially belongs to the State.
13.
According
to article 8 if a State does not extradite that person who commit the offence,
be obliged, without exception whatsoever and whether or not the offence was
committed in its territory, to submit the case without delay to its competent
authorities for the purpose of prosecution in accordance with the laws of that
State. This means there will be no chances for the offenders to escape
punishments. Paragraph 2 of article 8 says: “whenever a state is permitted
under its domestic law to extradite or otherwise surrender one of its nationals
only upon the conditions that the person will be returned to that State to
serve the sentence imposed as a result of the trial or proceeding for which the
extradition or surrender of the person was sought, and this State and the State
seeking the extradition of the person agree with this option and other terms
they deem appropriate, such a conditional extradition or surrender shall be
sufficient to discharge the obligation set forth in paragraph 1”. Again this article describes that there is no
permanent extradition. Only till the sentences are over.
14.
Whether
a State Party has not signed in a treaty the extradition or prosecution should
take place in respect of the offence set forth in the article 2 of the
terrorist bombing convention.
15.
On the
other hand the article 11 says that extradition cannot be used for the sole
purpose of political agendas. But no
offences offence set forth in article 2 shall be regarded for the purposes of
extradition as a political offence or an offence connected with a political
offence.
16.
The
sooner this convention was came into effect different States identified
possible ways to further strengthen the international legal anti-terrorism
regime that should include:
16.1.
Consequences
of terrorist activities
16.2.
Acts of
armed forces of a State when those actions violate provisions of the UN Charter
or international law of armed conflict
16.3.
Agreement
on a definition of terrorism and terrorist acts and distinction between
terrorism and struggle for independence and
16.4.
Measures
dealing with WMD terrorism.
17.
Considering
all these articles and concepts there is no way that a State Party can hold a
terrorist in its territory without extradition. Otherwise the prosecute regime
can be implemented on the State which is hiding the terrorists as well as
allowing terrorist activities.
18.
One more
example on the prevention of terrorism in the world is the Convention on the
Prevention and Punishment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, also describes, the purpose and principles of the
UN Charter concerning the maintenance of international peace and the promotion
of friendly relations and cooperation among States, believing that the
commission of such crimes is a matter of grave concern to the international
community.
19.
Article
7 of the latter mentioned Convention states: “ the State party in whose territory the alleged offender is
present shall, if it does not extradite him, submit, without exception
whatsoever and without undue delay, the case to its competent authorities for
the purpose of prosecution, through proceedings in accordance with that State.
OTHER CONVENTIONS WHICH SUPPORTS TO EXTRADITION OR PROSECUTE REGIME
20.
Here is a summary of the 14 major legal instruments
and additional amendments dealing with terrorism and the State Parties have to
criminalize the unlawful possession by restraints, take custody, punishing
offenders in order to maintain law and order in the world. And these
conventions emphasize the State Parties to extradite the terrorists to the
respective States to implement the prosecution process.
1. 1963
Convention on Offences and Certain Other Acts Committed On Board Aircraft
(Aircraft Convention)
(Aircraft Convention)
- Applies to acts affecting in-flight safety;
- Authorizes the aircraft commander to impose reasonable measures, including restraint, on any person he or she has reason to believe has committed or is about to commit such an act, where necessary to protect the safety of the aircraft; and
- Requires contracting States to take custody of offenders and to return control of the aircraft to the lawful commander.
2. 1970 Convention for the Suppression of Unlawful Seizure
of Aircraft
(Unlawful Seizure Convention)
(Unlawful Seizure Convention)
- Makes it an offence for any person on board an aircraft in flight to "unlawfully, by force or threat thereof, or any other form of intimidation, [to] seize or exercise control of that aircraft" or to attempt to do so;
- Requires parties to the convention to make hijackings punishable by "severe penalties"
- Requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution; and
- Requires parties to assist each other in connection with criminal proceedings brought under the Convention.
- Supplements the Convention for the Suppression of Unlawful Seizure of Aircraft by expanding its scope to cover different forms of aircraft hijackings, including through modern technological means;
- Incorporates the provisions of Beijing Convention relating to a threat or conspiracy to commit an offence.
3. 1971 Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation
(Civil Aviation Convention)
(Civil Aviation Convention)
- Makes it an offence for any person unlawfully and intentionally to perform an act of violence against a person on board an aircraft in flight, if that act is likely to endanger the safety of the aircraft; to place an explosive device on an aircraft; to attempt such acts; or to be an accomplice of a person who performs or attempts to perform such acts;
- Requires parties to the Convention to make offences punishable by "severe penalties"; and
- Requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution.
4. 1973 Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons
(Diplomatic Agents Convention)
(Diplomatic Agents Convention)
- Defines an "internationally protected person" as a Head of State, Minister for Foreign Affairs, representative or official of a State or international organization who is entitled to special protection in a foreign State, and his/her family; and
- Requires parties to criminalize and make punishable "by appropriate penalties which take into account their grave nature" the intentional murder, kidnapping or other attack upon the person or liberty of an internationally protected person, a violent attack upon the official premises, the private accommodations, or the means of transport of such person; a threat or attempt to commit such an attack; and an act "constituting participation as an accomplice".
5. 1979 International Convention against the Taking of
Hostages
(Hostages Convention)
(Hostages Convention)
- Provides that "any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostage within the meaning of this Convention".
6. 1980 Convention on the Physical Protection of Nuclear
Material
(Nuclear Materials Convention)
(Nuclear Materials Convention)
- Criminalizes the unlawful possession, use, transfer or theft of nuclear material and threats to use nuclear material to cause death, serious injury or substantial property damage.
Amendments to the
Convention on the Physical Protection of Nuclear Material
- Makes it legally binding for States Parties to protect nuclear facilities and material in peaceful domestic use, storage as well as transport; and
- Provides for expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences or sabotage, and prevent and combat related offences.
7. 1988 Protocol for the Suppression of Unlawful Acts of
Violence at Airports Serving International Civil Aviation, supplementary to the
Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation (Extends and supplements the Montreal Convention on Air Safety)
(Airport Protocol)
(Airport Protocol)
- Extends the provisions of the Montreal Convention (see No. 3 above) to encompass terrorist acts at airports serving international civil aviation.
8. 1988 Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation
(Maritime Convention)
(Maritime Convention)
- Establishes a legal regime applicable to acts against international maritime navigation that is similar to the regimes established for international aviation; and
- Makes it an offence for a person unlawfully and intentionally to seize or exercise control over a ship by force, threat, or intimidation; to perform an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of the ship; to place a destructive device or substance aboard a ship; and other acts against the safety of ships.
- Criminalizes the use of a ship as a device to further an act of terrorism;
- Criminalizes the transport on board a ship various materials knowing that they are intended to be used to cause, or in a threat to cause, death or serious injury or damage to further an act of terrorism;
- Criminalizes the transporting on board a ship of persons who have committed an act of terrorism; and
- Introduces procedures for governing the boarding of a ship believed to have committed an offence under the Convention.
9. 1988 Protocol for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental Shelf
(Fixed Platform Protocol)
(Fixed Platform Protocol)
- Establishes a legal regime applicable to acts against fixed platforms on the continental shelf that is similar to the regimes established against international aviation.
2005 Protocol to the
Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf
- Adapts the changes to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation to the context of fixed platforms located on the continental shelf.
10. 1991 Convention on the Marking of Plastic Explosives for
the Purpose of Detection
(Plastic Explosives Convention)
(Plastic Explosives Convention)
- Designed to control and limit the used of unmarked and undetectable plastic explosives (negotiated in the aftermath of the 1988 Pan Am flight 103 bombing);
- parties are obligated in their respective territories to ensure effective control over "unmarked" plastic explosive, i.e., those that do not contain one of the detection agents described in the Technical Annex to the treaty;
- Generally speaking, each party must, inter alia, take necessary and effective measures to prohibit and prevent the manufacture of unmarked plastic explosives; prevent the movement of unmarked plastic explosives into or out of its territory; exercise strict and effective control over possession and transfer of unmarked explosives made or imported prior to the entry into force of the Convention; ensure that all stocks of unmarked explosives not held by the military or police are destroyed, consumed, marked, or rendered permanently ineffective within three years; take necessary measures to ensure that unmarked plastic explosives held by the military or police are destroyed, consumed, marked or rendered permanently ineffective within fifteen years; and, ensure the destruction, as soon as possible, of any unmarked explosives manufactured after the date of entry into force of the Convention for that State.
11. 1997 International Convention for the Suppression of
Terrorist Bombings
(Terrorist Bombing Convention)
(Terrorist Bombing Convention)
- Creates a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into, or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place.
12. 1999 International Convention for the Suppression of the
Financing of Terrorism
(Terrorist Financing Convention)
(Terrorist Financing Convention)
- Requires parties to take steps to prevent and counteract the financing of terrorists, whether direct or indirect, through groups claiming to have charitable, social or cultural goals or which also engage in illicit activities such as drug trafficking or gun running;
- Commits States to hold those who finance terrorism criminally, civilly or administratively liable for such acts; and
- Provides for the identification, freezing and seizure of funds allocated for terrorist activities, as well as for the sharing of the forfeited funds with other States on a case-by-case basis. Bank secrecy is no longer adequate justification for refusing to cooperate.
13. 2005 International Convention for the Suppression of
Acts of Nuclear Terrorism
(Nuclear Terrorism Convention)
(Nuclear Terrorism Convention)
- Covers a broad range of acts and possible targets, including nuclear power plants and nuclear reactors;
- Covers threats and attempts to commit such crimes or to participate in them, as an accomplice;
- Stipulates that offenders shall be either extradited or prosecuted;
- Encourages States to cooperate in preventing terrorist attacks by sharing information and assisting each other in connection with criminal investigations and extradition proceedings; and
- Deals with both crisis situations (assisting States to solve the situation) and post-crisis situations (rendering nuclear material safe through the International Atomic Energy Agency (IAEA).
14. 2010
Convention on the Suppression of Unlawful Acts Relating to International Civil
Aviation
(New civil aviation convention)
(New civil aviation convention)
- Criminalizes the act of using civil aircraft as a weapon to cause death, injury or damage;
- Criminalizes the act of using civil aircraft to discharge biological, chemical and nuclear (BCN) weapons or similar substances to cause death, injury or damage, or the act of using such substances to attack civil aircraft;
- Criminalizes the act of unlawful transport of BCN weapons or certain related material;
- A cyber attack on air navigation facilities constitutes an offence;
- A threat to commit an offence may be an offence by itself, if the threat is credible.
- Conspiracy to commit an offence, or its equivalence, is punishable.
CONCLUSIONS
21.
Hence
there is no doubt that almost all conventions on terrorism states the necessity
of punishing the offenders, especially those who commits terrorist activities
within or outside State Parties, shall be extradite or prosecute regime in
respective to their offences.
22.
According to the ICC norms
it is in fact, the principle aut dedere aut judicare (duty to prosecute or extradite) is considered as representing not only a
rule of customary international law but also a rule of jus
cogens. At the Rome Conference, Croatia suggested the inclusion of a provision
under which a state should not refuse a request for surrender of persons by the
Court as obligations deriving from such a request shall prevail over any legal
impediment to do so, be it under national law or extradition treaties of the
state concerned.
REFERENCES
1.
Chatham House
(July 2013), International Law Summary, International criminals: Extradite
or Prosecution? Available at:
http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/110713summary.pdf
[Accessed 15 October 2014]