gaining custody of perpetrators of international crimes
24th March 2018.
There is no international police force that can gain custody of the accused under international law so that they can be tried in international tribunals or domestic courts. When perpetrators operate cross-borders, the domestic police in one territory cannot operate in another without the other country’s permission. State co-operation is vital. Some states can act unilaterally, causing friction in the international community.
So how can we bring a perpetrator to justice?
Option 1: Extradition
Extradition is the legal method that an individual can be brought from one country to another by state cooperation. Extradition is governed by treaties. When a country does not have an extradition treaty with another, extradition cannot work. The United Kingdom and other major countries have over one hundred extradition treaties. No country has an extradition treaty with every country. This means there are perpetrators that can escape extradition.
Most extradition treaties are based on a list of around 25 offences extraditable. If the offence is not on the list, the individual cannot be extradited. In modern times, states use the dual criminality approach. This means if the crime is punishable by over a year in prison in both countries, only then can there be extradition. The problem is there are many crimes in which dual criminality does not apply.
There is an exception to extradition law, which is the political offence exception. There are two approaches to the political offence exception:
- The incidence test: someone is not extraditable if their crime occurred during an ongoing uprising and their crime is in furtherance of it. This is because throughout the ages, there have been people who commit crimes and are seen as heroes. It is not in the interest of a country to send the individual back to their home country, as that individual could be persecuted rather than prosecuted.
- The proportionality test was developed by Switzerland. This looks at the political objective and then looks at what the crime was. If the crime was justified by the objective then that person is not extraditable.
Example: In the 1980’s the IRA committed crimes in Northern Ireland and across Britain. Some perpetrators then went to USA. The perpetrators then argued they should not be extradited back to the UK as their crimes occurred during an ongoing uprising and that murder and bombings were in furtherance of it. The UK and the USA had to amend their extradition treaty to get rid of the political offence exception.
Most countries around the world still have the political offence exception in their extradition treaties.
Example: Osama Bin Laden would not escape under the political offence exception. Courts have been trying to figure out how to apply the political offence exception in a way that does not allow heinous acts to escape justice. The thinking is this: those that commit indiscriminate attacks against the civilian population cannot be subject to the political offence exception.
An extradition treaty forms a long term relationship between states. It means a state will not just be surrendering foreign nationals back to their home nation, but even their own nationals to another country for prosecution.
This means states who have extradition treaties must be confident in the other state’s justice system. The state must be confident that the individual will have a fair trial. This is the main reason why states don’t have extradition treaties with other states.
Example: With the case of Julian Assange’s extradition, there was an extradition request from Sweden to the UK on charges of sexual abuse. Assange claimed this was an excuse, and if he went to Sweden, he would be transferred to the US.
A UK court judgment said that the political offence exception does not apply if someone believes the motives of another state are political. It only applies if the offence occurs during an ongoing uprising (incidence test), which there wasn’t one, and the alleged crime of sexual abuse was not for a political objective (proportionality test).
Option 2: Deportation
Another way to bring a perpetrator to justice is by deporting them. This ignores the political offence exception problem of extradition, and ignores the need for an extradition treaty, and ignores the dual criminality approach.
If a perpetrator flees the country, and turns up in another territory illegally, usually with a false passport or lying on a visa application (such as they did not declare that they are wanted for crimes), it constitutes as illegal entry. A state can deport them back to their own country.
Deportation can often be extradition in disguise, and it does work as a way of transferring one person who is wanted for a crime in another country.
Option 3: Luring
If deportation or extradition does not work, another method of bringing perpetrators to custody is luring. This is the act of tempting a person to go outside of their state territory to another territory in order to gain custody of them.
Example: Operation Goldenrod. A Lebanese airline was hijacked in 1980’s. The perpetrators let the passengers go, and made a videotape of them shaking hands with the passengers onboard the flight to show that they were respected by the passengers (the passengers clearly complied as they did not wish to die). The videotape was circled within terrorist circles and the US was alerted by this videotape. The videotape clearly showed who the perpetrators were. Up to this point, the perpetrators were not brought to justice. The US created a strategy to lure a particular individual, Fawaz Younis, who was involved in the hijacking, into international waters to arrest him and bring him to trial in the US. They did this by setting up a drug operation with undercover FBI officers posing as the party to the drug transaction. The individual was arrested, prosecuted and sentenced to 30 years in a US prison. He served sixteen years of it in the US, and in 2005 was deported back to Lebanon.
Luring a perpetrator into international waters does not violate state sovereignty, and it has been successful in bringing perpetrators to justice.
Apart from taking someone in international waters, luring can occur in another state’s territory, and can occur in their own territory, disguising as offering medical treatment for example.
But luring can fail. An example of a failed luring was the Van Sichem case. Van Sichem was a major international drug dealer, with a distribution network in the Netherlands. In Dutch extradition treaties, they do not extradite their nationals to other countries, but they will prosecute them instead in a Dutch court. The US wanted Van Sichem in a US court, as the drugs laws are weaker in the Netherlands. The US attempted to lure him to Belgium, and extradite him to the US. The US tapped the phones of Van Sichem and his girlfriend, and approached the girlfriend to get Van Sichem in Belgium or face arrest. The girlfriend agreed, and as the girlfriend lived in New York, she called Van Sichem from the Netherlands and asked to meet in Belgium with the US authorities listening in on the conversation. Van Sichem arrives in Belgium and he is arrested by US authorities in the airport with consent by Belgium. The Netherlands were not happy.
The Dutch argued that the US carried out a law enforcement operation on its territory without any permission from the government. That intercepting a phone call on Dutch territory violates the territorial integrity of the Netherlands. The Netherlands said this luring was kidnapping in disguise. Intercepting a phone call penetrates the territory of the Netherlands. As a result, the Netherlands said that will not extradite any individual that the US want. This case eventually ended up in a prisoner transfer agreement.
Luring then means, even though there does not involve physical penetration into a states territory, it can be considered as a violation of their sovereignty.
Option 4: Abduction
Abduction is the kidnapping of an individual without the consent of the state the individual is a national of.
Example: Alvarez Machain was a doctor in Mexico who was involved in a drug cartel. Kiki Camarina was a US drugs enforcement officer operating undercover in Mexico. A drug cartel found out Kiki was an undercover US officer, and tortured him to gain intelligence on other undercover agents in Mexico. Alvarez Machain was involved in this torture. Kiki died from the severity of the torture.
The US found out Alvarez Machain was involved in this torture. US agents went into Mexican territory, abducted Alvarez Machain by throwing him in the back of a car and drove him back over the border into the US. The US did not ask Mexico for permission to extradite him. The US thought at the time the Mexican authorities were corrupt.
Alvarez ended up apprehended in San Diego. Lawyers said the abduction violates international law and Mexico’s sovereignty; the US abducted a Mexican citizen. The case goes to the US Supreme Court. The Court said that an individual’s rights began once they were in US territory, irrespective of how the person came into US territory. Judges applied a doctrine named Ker-Frisbie. This means individuals can be brought from one state to another irrespective of how they were treated. An extradition treaty was not violated as it was not used. The judges said international law may have been violated, but the trial of Alvarez over the torture of Kiki should not be dismissed.
This essentially said to the rest of the world: the US can kidnap your citizens wherever they are. In response, some states modified their extradition treaties to the US that expressly makes clear kidnapping cannot happen.
Is abduction ever permitted?
Toscanino doctrine. A US court case: if the kidnapping shocks the conscience of the court, such as it involved electric shocks, sticking objects under the fingers, alcohol into the eyes, and serious degrading treatment, the reason why they were abducted can be dismissed. It appears the US courts will allow kidnapping unless an individual is tortured.
Does this apply to international tribunals?
Dragan Nikolić case: a Bosnian Serbian who was responsible for war crimes was kidnapped in his sleep by NATO led peacekeeping forces named SFOR (Stabilisation Force in Bosnia and Herzegovina). The forces went into his property while he was asleep in his underwear at his home. They grabbed him and put him in a shipping container and shipped him to The Hague to stand trial at the ICTY (International Criminal Tribunal for the Former Yugoslavia). Arriving in the Netherlands he was disorientated and bruised. In court, he said the case must be dismissed, as he was not extradited to the Netherlands, and Bosnia and Herzegovina was not asked for permission.
The International Criminal Tribunal for the Former Yugoslavia had to deal with this issue. The Appeals Chamber decided that the case would not be dismissed. This is because although kidnapping was wrong, and it violates the individual’s human rights and a state’s territorial integrity, the individual was charged for the most heinous crimes known to human kind, crimes against humanity. The Appeals Chamber said it would be disproportionate to dismiss the case. It would consider a reduced sentence, or compensation, but the trial would go ahead. He was sentenced to 23 years in prison, which was reduced to 20 years following the appeal.
Even if abduction succeeds, it leads to other problems. An example of this is with the CIA, who kidnapped an Italian individual said to be involved in terrorism. Milan prosecuted the CIA officers in their absence, meaning some CIA officers have an international arrest warrant, and they now cannot leave the United States.
Option 5: Assassination
I will look at two ways states decide to assassinate an individual in order to bring them to justice. This is of particular relevance to Osama Bin Laden.
1. Using an unmanned aircraft, such as a predator drone. Predator drones are remote drones that carry hell fire missiles, and are controlled by an operator.
The US has been using this method in Afghanistan, Pakistan, Yemen, Iraq and other countries.
Advantages of using a drone to assassinate an individual:
- The operator’s identity remains unknown.
- A predator drone is safer. It does not put the operator at risk. Putting forces in another territory are at risk of being captured or killed, regardless of if the assassination is successful or not.
- The hellfire missiles on a predator drone make a big explosion. It can result in collateral damage.
- Without actual evidence of the assassination (such as the body), it carries a risk of the actor/the public/the enemy believe that the individual was not actually killed. There would be no closure.
- It is likely perpetrators would be in close proximity of evidence and intelligence that can be used against them, and can identify other criminals. If using a predator drone, this evidence and intelligence can be blown up.
2. Using special forces/an agent is the sending in of special forces/agents in another territory physically and have the perpetrator killed directly.
- Can be accurate in targeting.
- Can actually have evidence, giving closure to the case.
- Can collect intelligence that is nearby to identify other criminals.
- Can put the special forces/agent’s life at risk.
- Identity of the special forces/agent could be exposed.
- The special forces/agent could be captured and embroiled in a lengthy extradition case with the state, or captured and tortured.
Legal issues of assassination
A state cannot go into another state and use force, unless permission is given by that state, it is for self-defence or through Security Council resolution. It is a violation of the UN Charter.
This means, the US’s decision to go into Pakistan to assassinate Bin Laden was a violation of the UN Charter. There was no permission given by Pakistan to do it. The Security Council authorised use of force in Afghanistan through a resolution stating the use of force is permitted against the perpetrators of the 9/11 attacks and those supporting them. Pakistan say that they support the US in their war against terrorism, and so it is not clear if the assassination would fall within that authorisation. The self-defence argument (Article 51 of the UN charter) cannot be argued, as Pakistan is an ally of the US. Pakistan were not attacking the US.
The US’s position was this: if a state is unable or unwilling to stop terrorists from operating in their borders, the US can take forceful action under the self-defence principle to protect itself from terrorists. It was in anticipatory (that an attack is imminent) and pre-emptive self defence. This is a contentious issue in international law.
The International Court of Justice has said several times that in order for a country to attack non-state actors, which include terrorists, that are operating within the borders of another country, the prerequisite is that their actions have to be imputed to the other country. This is because it is too destabilising to allow countries to just attack people from all over the world.
In the case of Bin Laden assassination was used rather than prosecution because:
- Bin Laden’s followers would have rallied to coerce the US and allies into his release.
- Where would you prosecute him? Wherever it would be decided, it would be dangerous and susceptible to attack.
- Cannot guarantee the trial would be orderly. The jury would be aware of 9/11 and the media commotion around the attack.
In summary, bringing someone to justice is a weak spot of international criminal law. It can be difficult to bring to justice perpetrators accused of crimes against humanity, genocide, terrorism, piracy, and war crimes as there is no international police force. Extradition, deportation, luring, abductions and assassinations are full of controversy.
It seems that in order to bring someone to justice, hands need to get a little dirty. A judge at the Nuremberg trials said that is something states should never do- never stoop to the perpetrators level. Standing for something is the most difficult, and people need to be reminded of what a country stands for. States need to think about the message they are sending to other states.
Michael Sharf - Professor of Law and Associate Dean for Global Legal Studies, Case Western Reserve University