EXTRADITE OR PROSECUTE REGIME IN THE COUNTER-TERRORISM CONVENTIONS: A CRITICAL ANALYSIS

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 10^th 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)

• 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)

• 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.

2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft

• 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)

• 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)

• 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)

• 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)

• 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)

• 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)

• 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.

2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

• 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)

• 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)

• 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)

• 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)

• 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)

• 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)

• 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]