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Trans-national Criminals: A Potential ICC Jurisdiction

Existent methods of Extradition

Extradition, under the International Law is a diplomatic process where one state requests another for the custody of a criminal or a fugitive of law. This process must be applied when the fugitive violates a law as prescribed by the country that's requesting custody, outside of its jurisdiction.[1] The process of extradition has no standard law or statute but is more of an obligation that the states undertake on their good faith towards each other in order to meet justice.[2]

Extradition processes are usually subject to two factors: Municipal or domestic laws of the state which requests for the fugitive and a binding extradition treaty if at all one is already in existence.[3]

States sometimes facilitate requests of extradition for some cases in which it has already declared for reciprocation with requesting states. In case there is no binding international obligation between the states, they rely on municipal or domestic law of the state by which the criminals are surrendered. Therefore, international obligation or municipal law, it is clear that the states act solely in good faith between the parties. Non- party states to the extradition treaty however are an uncertain ground who in case have the necessity of an extradition, have no ideal process.

Any offence mentioned under the Organized Crime Convention as an extraditable offence, is to be dealt with by an extradition treaty between the State Parties.[4]

In an extradition process, the legal systems of several states must be recognized, acknowledged and taken into account. Though there might be many differences in the legal systems of each country and state, the Organized Crime Convention has put forth certain principles that provide a comprehensive outline for extradition.

They are:
  1. Double criminality:
    Alleged offence must be a violation of law in both state parties. (Requesting and the Requested)
     
  2. Rule of Specialty:
    This principle states that a fugitive must not be prosecuted or proceeded against, for any crimes other than the ones that the requested State consents to surrender the fugitive for.
     
  3. Non- extradition of nationals:
    In some States extradition of its own citizens is prohibited by the State's constitutional provisions. However, Public International Law puts forth a legal obligation to the States where a person who commits grave international crimes must be extradited or prosecuted despite the existence of any such constitutional provision in case the home State of the criminal is not going to prosecute him by domestic law.
     
  4. Political offence exception:
    In a theoretical sense, this principle gives a State the right to non-extradition of a person alleged specifically for a political crime. It is possible that this principle does not have the desired effect since there is no standard definition for what constitutes a "Political Crime". This principle is henceforth subject to quite an amount of controversy.
     
  5. Risk of unfair trial in requesting state:
    The requested state is allowed to not surrender a fugitive if it has reason to believe that the fugitive might not get a fair trial or might be subjected to torture or other such inhuman treatment.
     
  6. Double jeopardy:
    By this principle it is provided that a criminal may not be extradited for a crime that he/she has already been prosecuted for.
     
  7. Non-discrimination clause and Risk of persecution in requesting state:
    This principle states that the requested state has a right to not surrender a criminal if the state believes that the criminal might be persecuted solely due to his/her nationality, race, religion, gender etc.
 

Existent Issues

  1. Jurisdiction
    The mechanism of extradition in itself involves more than one country in several aspects and jurisdiction for sure is one of the important aspects which has to be focused on, analyzed and decided by the countries involved. Jurisdiction is hindered by the extradition process in many possible ways.

    For example, the most basic form could be when an individual committed a crime in one country and fled to another. But what happens when the individual has committed crimes in more than two countries including or excluding his home country, or if he murdered a migrant in his home country. Therefore, when many countries somehow become involved, the jurisdictional aspect brings about a clash between them in the extradition treaty.

    Further, another issue is when one country is asked to surrender one of its citizens for prosecution as requested by another for a crime committed in the territories of that country.[5] Many nations refuse to surrender their citizens for extradition, the ground for which is sometimes rooted in their constitutional provisions and other times when the country claims to follow the principle of "aut dedare aut judicare"[6] which allows the country to prosecute its citizens by native jurisdiction.

    Con-man and Impersonator: Frank W. Abagnale
    Frank W. Abagnale who is now a famous and successful attorney in the United States began his career by committing several white-collar crimes like fraud, forgery and swindling. He was a con-man who impersonated a pilot, doctor and other such roles to enjoy monetary benefits. This took him all over the world and led him to commit crimes in numerous countries. He was then arrested by the French police and when it came to his extradition, 12 countries sought him for a sentence. He spent six months in the French prison, six months in the Swedish Prison and was then deported back to the U.S for a sentence of 12 years without Parole.[7]

    Frank Abagnale was not extradited to the other countries because the U.S State Department revoked his passport. In this case, jurisdiction has very much been a problem and the extradition of Frank Abagnale served justice to only three out of the 12 countries that were supposed to have prosecuted him. Since he was a forger, there were millions worth of money that he had swindled from all these countries that have sustained nothing but a loss. Therefore, all the remaining countries did not have their justice met.
     
  2. Difference of Opinion regarding the conviction
    Difference of opinion between countries regarding the conviction of an individual could give rise to chaos in the extradition. Certain acts could be legal in one country whereas illegal in the other. (Eg: Use of Marijuana for Medical and Recreational purposes, Laws regarding rape, self-defense etc.) Trial processes and admissibility of evidence could also be different in various countries or states and this would be quite a complication in the Extradition process.

    United States V. Burns[8]
    In this case, the Supreme Court of Canada held a decision where it stated that individuals must not be extradited to places where they may face the death penalty since it was a violation of fundamental justice.[9] The facts of this case are, two Canadian citizens were arrested by the Washington Police Department and were convicted for murder of a family.

    The two fugitives were returned to Canada and on interrogation they confessed to the murder to the Undercover Royal Canadian Mounted Police when they used a specific method known as Mr. Big Tactic. This technique of obtaining a confession is illegal in the U.S but legal by the Canadian Law. This difference in opinion shows a clear arbitrariness between countries in the process of investigation.
     
  3. Difference in nature of Punishment
    Although most countries have a more or less equal levels of punishment following the prosecution of an individual, there must be a difference in them to some level. Some countries still retain the Capital punishment that 60% of the countries in the world have abolished from their law. Time off for good behavior is another provision that is not allowed by the law of most countries. One step further, some countries like Norway even have therapy or community service through which they could work their sentences off. This difference in the nature of punishments or the provisions and entitlements that a convict might enjoy during his term does not constitute to fair and unbiased treatment.

In the Frank Abagnale case, he was sentenced to 12 years of prison isolation in Texas. But he was let out after serving four years because the FBI teamed up with him to identify other suspects who committed similar crimes as him since he had a familiarity to those crimes.[10] This is not a facility that might've been available to him if he had served his sentence in any of the other countries that requested his extradition.

Monster of the 'Andes'
Pedro Lopez, otherwise known as "Monster of Andes" was a serial rapist and murderer who murdered more than 300 people as he claimed in his trial, in countries like Columbia, Ecuador and Peru. He was convicted in Ecuador for 110 murders with Ecuador's maximum sentence of 16 years. He was later extradited to Columbia where he underwent therapy and was released for good behavior.[11]

Makaveli- Linden Case
In this case, the convict who is a Swedish National pleaded guilty to a murder that he committed in Norway. While he was on the run before he was convicted, he also committed a few robberies and a murder in Belgium. He fled to France and was captured in Dijon, France by the French Police and was extradited to Norway where he was sentenced for 5 years of hard therapy on account of his "Psychotic Episode" as pleaded by him.[12]

These two cases show how there are slight differences in the legal framework of each country and how the convicts sometimes, in plain terms just get border-line lucky with their convictions. This is a clear arbitrariness in the nature of punishment which consequently leads to unfair and biased treatment of criminals in the eyes of law.

Working of Interpol

When it comes to the working process of Interpol with respect to its duty towards extradition treaties it is important to know about something called "Red Notice". A Red notice is not a typical arrest warrant but rather a legally acclaimed 'wanted' notice that is requested to the law enforcement on an international scale to surrender or extradite an accused.

Two Main Types Of Information Are Specified In A Red Notice:
  1. Any superficial aspects such as color of the accused's hair, eye, a facial composite or photographs if available. Other available details such as his name, nationality and age etc., are also mentioned in these notices.
     
  2. Details regarding the crime that the suspect is alleged and wanted to be surrendered for.

Red notices are usually issued by the decision of the judiciary of the requesting country and then reviewed by a task force of the Interpol before it is out for processing. Red notices are not always issued by the judiciary of the suspect's home country. It could be a country where the crime was committed i.e., the victim's home country.

This individual who is at large and sought by the Interpol and requesting country for prosecution, is not a convict and must be treated as innocent until proven guilty. Issuance of a Red notice by the Interpol does not mean that the suspect is wanted by the Interpol itself, it merely serves the job of a typical police force by helping out in catching the suspect in favor of a certain country's law enforcement.[13]

The case of Luka Magnotta [14]
In the year 2012, there were a group of online sleuth communities that found a video on YouTube where a young man whose face was partially hidden by his hoodie posted a video of himself torturing some cats to death. The whole of the community was utterly shocked to the extent where they were set deadbeat on finding who the person in the video was. He later posted several other gruesome videos, all of which consisted him killing some more cats in a very cruel manner.

Since these were posted on YouTube, the online sleuth community tried to pick up some clues from them to identify his location, nationality etc. This wasn't taken as seriously at first. Not until, there was a chilling video of him killing a real human being on screen. It was then that the whole incident was taken seriously and the officials of Canada obtained more information on this killer like his identity and some camera footage.

It was known to them that he had fled to France right after this murder. This was when the Interpol was involved in this case. The Red Notice was issued and it was available for access by the public in case there was any information available on this fugitive.

Since the online community was already involved, they helped out as much as they can and he was caught and arrested in an internet caf´┐Ż while he was looking at his own Red Notice on the Interpol website. The Interpol then handed him over for prosecution to the law enforcement of Canada as requested by the Canadian Officials.

Therefore, in this case, it is clear that the Interpol just lends a helping hand for capturing a fugitive who is beyond a country's jurisdiction by fleeing to a whole other territory other than where the crime was committed.

Countries' take on a potential ICC Jurisdiction

After observation of the above issues regarding extradition treaties and other modes of conviction of international crimes, the claim made in the project is to consider a trial in the International Criminal Court of the fugitives of law, who have committed crimes which are beyond the scope of the Country's jurisdiction for various reasons. Although this might seem like a possible solution, there are certain points to be considered on behalf of the countries' as to how they might feel about accepting this proposition if it was ever made.

Pros
  • The Extradition treaties are not standard and the requested country may or may not abide by it. When the requested country chooses to not follow the treaty, the requesting country becomes an aggrieved party with no provision of redressal. Therefore, some countries might feel the need of a standard and ideal trial in the ICC where no party is aggrieved within reason.
     
  • The presence of an ideal procedure for trying of trans-national criminals avoids bias by the countries. Some countries, as mentioned above, follow this principle of not surrendering their own citizens. As much as this is a decision completely up to that country, it could be viewed as an arbitrary practice in some occasions by the countries requesting the extradition of the fugitive. A trial in the ICC would possibly fix this.

Cons:
  • Given that the International Criminal Court has a system of membership who by agreeing to be a member of the Court thereby declare to abide by the Rome Statute, 2002, the countries might argue that the place of non-member countries might be left unanswered in this whole arrangement. If the crimes are somehow related to the non-member countries, then it will not be held for trial under ICC and therefore by this arrangement the prime objective that is equality becomes futile.
     
  • Surrendering trans-national criminals to the ICC for trials might leave the countries feeling like their sovereignty is threatened. With a law enforcement body and constitutional provisions of its own, no country would want to give up a trial that it is fully capable to carry out on its own.

Recommendations and Conclusion

When it comes to a crime that took place in more than one country, it automatically involves all those countries as party to the extradition of the fugitive. With the involvement of several party members, there are many hindrances regarding, jurisdiction, trial process, admissibility of evidence, sentencing etc. A uniform code could be adopted where these criminals could be put for trial in the ICC which could serve as a solution to a lot of these issues. On the other hand, there are some concerns that need to be addressed if the ICC were to try the trans-national criminals.

Some recommendations to that regard would be as follows:
  • A diverse bench comprising of judges who have no bias to any of the parties involved could hear the case and decide upon it.
  • Non-member countries could be a part of this process of trial if deemed necessary and recommended by the Security Council.
  • A Uniform Criminal Code in addition to the Rome Statute, could be framed on account of this process which the countries could review and become signatories to which by default will necessitate them to abide by it.
  • If the said ICC trial is implemented, the ICC could correlate and work with the Interpol, as Interpol has no Executionary aspect and the ICC does not have its own enforcement facility, they could work hand in hand for crimes prescribed for these kinds of trials.
  • Extradition treaties although formed then and there is in essence a treaty where the terms of all parties must be included and agreed upon. Therefore, there could be a general rule where an extradition treaty once framed and signed must be abided by the parties at all situations.

"This cause, is the cause of all humanity" as said by former United Nations Secretary Kofi- Annan, the ICC aims on providing justice with an equal eye on anyone who seeks it. The trial of transnational criminals under the International Criminal Court, will overcome a lot of bias and arbitrariness and focus on a speedy justice that is fair to all parties. Yes, there are certain issues that may be raised, but none of them would be something that cannot be fixed by the ICC. May the ends of justice be met!

Bibliography
Primary Sources:
  • United Nations Convention Against Trans National Organized Crimes and the Protocols thereto, 2003
  • United Nations Convention Against Corruption, 2003
  • Canadian Charter of Rights and Freedom, 1986
  • Interpol General Secretariat, Lyon: France, 2013
Secondary Sources:
Articles
  • Robin- Ivan Capar, Norway Today, "Swedish 22- year old confesses to murder", 19 October, 2019
  • Ethan A. Nadelmann, The Evolution of United States Involvement in the International Rendition of Fugitive Criminals, 25 N.Y.U. J. Int'l L. & Pol. 813, 847 (1993)
Books
  • Abagnale, Frank, and Stan Redding. Catch Me If You Can. Mainstream Publishing, 1986.
Documentaries
  • Agnes Nixon, Biography, 1983, A&E Networks
  • Mark Lewis, Don't F**k with cats, 2019, Netflix
End-Notes:
  1. Oppenheim defines Extradition as delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time" LFL Oppenheim, Oppenheim's International Law, seventh edn, p 631.
  2. General Assembly resolution 45/116, Model Treaty on Extradition, A/RES/45/116 (14 December 1990)
  3. Article 16, United Nations Convention Against Trans National Organized Crimes and the Protocols thereto, 2003
  4. Article 16.3, United Nations Convention Against Trans National Organized Crimes and the Protocols thereto, 2003
  5. Ethan A. Nadelmann, The Evolution of United States Involvement in the International Rendition of Fugitive Criminals, 25 N.Y.U. J. Int'l L. & Pol. 813, 847 (1993)
  6. UNCAC note 10, at Article 44(11)
  7. Abagnale, Frank, and Stan Redding. Catch Me If You Can. Mainstream Publishing, 1986
  8. 2001 SCC 7
  9. Section 7, Canadian Charter of Rights and Freedom, 1982
  10. Abagnale, Frank, and Stan Redding. Catch Me If You Can. Mainstream Publishing, 1986
  11. Agnes Nixon, Biography, 1983, A&E Networks
  12. Robin- Ivan Capar, Norway Today, "Swedish 22- year old confesses to murder", 19 October, 2019
  13. Interpol General Secratariat, 2013. Article 3. Lyon: Interpol, pp.5-14, 27
  14. Mark Lewis, Don't F**k with cats, 2019, Netflix

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