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Home Archive for category "Extradition"

Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Published on July 28, 2017        Author: 

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.   Read the rest of this entry…

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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Gray v. Germany and the Extraterritorial Positive Obligation to Investigate

Published on May 28, 2014        Author: 

Last week a chamber of the European Court of Human Rights decided Gray v. Germany, no. 49278/09. The applicants were the sons of a British man who died in the UK after a doctor gave him the wrong drugs on a house visit. The doctor was German, and was hired by the UK National Health Service to provide out-of-hours home service to NHS patients. The doctor returned to Germany after the applicants’ father’s death. After a criminal malpractice investigation was conducted in the UK, Germany refused to extradite the doctor on the basis that criminal proceedings would ex officio take place in Germany. Those proceedings were later summarily completed, with the doctor sentenced to a fine, without notifying the applicants that the case would be disposed of summarily. The applicants claimed that this violated the procedural limb of Article 2 ECHR, read jointly with the overarching Article 1 obligation to secure human rights.

For various reasons, the Court rejected the applicants’ claim on the merits. But what makes this case interesting is that neither the German government, nor the Court sua sponte, thought that there was any Article 1 jurisdiction issue in saying that Germany had the positive obligation to investigate an unintentional death that took place in the United Kingdom, and at that at the hands of a private individual. Look at just how broad this position is – broader, indeed, than what I have argued for, since in my view a positive obligation would only apply if the death took place in an area controlled by the state or with state involvement.

Again, neither the Court nor the German government apparently thought that any Article 1 problem arose, presumably because the doctor was on German territory even though the applicant’s father had been in the UK. This well shows how in the small, politically unimportant cases people just tend to follow the universalist impulse and are oblivious to the existence of threshold applicability problems. Note, however, that the Court must ex officio confirm that the Convention applies and accordingly mind that it has subject-matter jurisdiction. If the issue was raised perhaps the Court would have decided it differently, but even so the case stands for the proposition that ECHR states parties have the duty to investigate even accidental deaths that took place outside any area under their control if the alleged perpetrator is located in such an area.

Stated in these terms, the implications of such an expansive approach are I think clear. Remember Alexander Litvinenko’s assassination in London, ostensibly at the hands of Russian agents? His family took a case against Russia to Strasbourg, which (I’ve been told) is on standby while issues around possible inquiry proceedings are being resolved in the UK. Suddenly that case becomes much easier for the applicants – regardless of whether the radioactive poison was administered by a Russian agent, if the alleged perpetrator is in Russia then Russia would have an Article 2 obligation to investigate. Similarly, if say a British tourist killed somebody in Thailand but then managed to escape back to the UK, the family of the deceased person in Thailand would have Article 2 rights vis-à-vis the UK and the UK would have to investigate the death, at least if it refused extradition. And this approach would a fortiori apply to cases where there is state involvement, e.g. when a soldier kills a civilian in an area not under the state’s effective control, but later returns to the state’s own territory.

In short, the Court seems to have actually created a comprehensive aut dedere, aut judicare principle under the ECHR, that applies even to unintentional taking of life, and probably did so unwittingly. Obviously we’ll have to wait and see whether Gray will have such an impact, or whether the Court will somehow manage to reverse course.

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The Political Offense Exception: Punishing Whistleblowers Abroad

Published on November 14, 2013        Author: 

Mark KielsgardDr. Mark D. Kielsgard, is an Assistant Professor of Law at City University of Hong Kong.

 

 

On June 14, 2013, the U.S. lodged a criminal complaint against Edward Snowden for theft of government property and espionage after he had fled the country. Snowden is seen by many as a hero and modern whistleblower. Protecting whistleblowers has become increasingly important as the U.S. has been stepping-up use of the Espionage Act of 1917 to prosecute suspected whistleblowers (Obama’s Abuse of the Espionage Act is Modern-day McCarthyism, The Guardian, Aug. 6, 2013). Government employees, contractors and journalists have voiced concern over reporting misconduct for fear of government reprisals. In light of recent developments in the U.S. and the general temptation of all governments to cut corners in the post-911 era, extradition protection for whistleblowers who seek protection abroad is essential to protect political activism and foster political change. This essay will consider the continued relevance of the political offense exception common to most extradition treaties and discuss its implications for modern whistleblowers abroad.

The U.S. seems to provide fugitives with among the lowest threshold of protection while many other states have evolved their standards. This is largely due to the antiquated interpretation of the traditional “incidence” test recognized for “relative political offenses” under U.S. law. As virtually no political offense can qualify as a “pure political offense,” a “relative political offense” analysis is indispensible. By recognizing a lower threshold of protection for “relative political offenses,” U.S. law has effectively rendered this exception meaningless.

The Political Offense Exception

The political offense exception dates back to at least the 19th century and has several justifications. It is premised on the belief that individuals have a right to resort to political activism to foster political change and manifests the requirement of fairness that individuals should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. Additionally, it complies with the right of self-determination, that foreign governments should not intervene in the internal political struggles of other nations. This exception is commonly included in extradition treaties and is provided in the United Nations Model Treaty on Extradition (G.A. Res. 45/116) at article 3(a). Read the rest of this entry…

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The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part I

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. Read the rest of this entry…

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Immunity ratione materiae from extradition proceedings: A rejoinder to Thiago Braz Jardim Oliveira

Published on September 5, 2013        Author: 

Roger O’Keefe is University Senior Lecturer and Deputy Director of the Lauterpacht Research Centre for International Law, University of Cambridge.

Before I engage with the substance of Thiago Braz Jardim Oliveira’s excellent reply to my British Yearbook of International Law casenote and Oxford talk (available here) on the Khurts Bat case, I would like to thank him for bringing both to the attention of a far wider audience than they have likely enjoyed until now. We all spend ages working on these things while others are stopping to smell the flowers, often only for the fruits of our labours to lie unread or unheard by all bar those on whom we pull a weapon. So muito obrigado, Thiago.

By way of rejoinder to what Thiago says, I will make only a few brief points.

Any proceedings before a court are by definition judicial proceedings, whether or not they involve the adjudication of the legality of given acts. In those legal systems where a request for extradition is dealt with, at least at a preliminary stage, by a court (and I have always laboured under the belief that this was what made extradition ‘extradition’, as opposed to mere executive surrender of custody), extradition involves judicial proceedings. Where extradition involves judicial proceedings, these proceedings are of a criminal character—that is, they are heard by a criminal court, often in the form of a magistrate, rather than by a civil or administrative court. In short, extradition proceedings, where they take place, are criminal proceedings.

The fact that extradition may not involve judicial proceedings in every legal system (although, again, I had always thought that judicial involvement was the touchstone of extradition) does not mean that international law should not take those extradition proceedings that do occur for what they are, namely judicial proceedings, specifically criminal proceedings. In other words, with respect to states where extradition proceedings do take place, it stands to reason that international law should regulate the availability of those same procedural immunities whose availability it regulates in the context of other criminal proceedings. Read the rest of this entry…

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Foreign State Officials Do Not Enjoy Immunity Ratione Materiae from Extradition Proceedings: The Not So Curious Case of Khurts Bat – A reply to Dr. Roger O’Keefe

Published on September 4, 2013        Author: 

ThiagoThiago Braz Jardim Oliveira is a teaching assistant at the Faculty of Law of the University of Geneva and a PhD candidate at the Graduate Institute of International and Development Studies.

On November 15th of last year, Dr. Roger O’Keefe (Cambridge University) gave a very interesting talk at Oxford University titled “Immunities and Extradition: The Curious Case of Khurts Bat”. I was not there, but benefitted from Oxford University’s excellent podcast system (podcast of talk available here). As Dr. O’Keefe explained, the talk developed views he had already expressed in a case note he had written for the British Yearbook of International Law. The case in question was Khurts Bat v Investigating Judge of the German Federal Court, [2011] EWHC 2029 (Admin). The case involved a request by Germany for the extradition, from the UK, of Mr Khurts Bat, head of the Office of National Security of Mongolia. He was sought on account of crimes he supposedly committed in Germany, particularly the kidnapping, imprisonment and questioning of a Mongolian national. In the extradition proceedings before the English court, Mongolia attempted to prevent the extradition of her official by invoking two types of immunity, both of which failed. First, Mongolia relied on personal/ status immunity or immunity ratione personae on the basis that defendant was said to be a member of a Special Mission sent by Mongolia to the UK and also by virtue of Mr. Bat’s position as “a very senior governmental officer.” Secondly Mongolia relied on subject-matter immunity or immunity ratione materiae, arguing that the acts in respect of which Khurts Bat was accused in Germany were committed on behalf of Mongolia.

It had been asserted before the English court that “[Mr. Khurts Bat was] entitled to immunity from criminal prosecution in Germany ratione materiae” (ibid., para. 63). Dr. O’Keefe considered this argument to be “wholly illogical”. For him, to focus on whether the defendant was immune, as a matter of international law, from the courts of the requesting State (Germany), as opposed to from the jurisdiction of the English courts was plainly wrong. The point was crucial because the court eventually held that, under international law, there was no immunity ratione materiae from the jurisdiction of a State with respect to acts done in that State. Since the acts were done in Germany and the English court considered immunity from German jurisdiction, it was held that Mr Khurts Bat did not benefit from immunity ratione materiae. As I explain below, I think the English court was right to treat the question as one relating to immunity from German jurisdiction and not from English jurisdiction. Read the rest of this entry…

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The Sheer Awfulness of Julian Assange

Published on December 1, 2012        Author: 

Julian Assange gave an interview to the BBC yesterday – available here – which I commend to readers; it’s only 10 minutes long. Assange has of course had a long history of Messianic self-victimization and refusing to submit to legal process in Sweden and the UK on charges of sexual assault. I won’t even go into the momentous irony of a supposed champion for the freedom of speech taking refuge in the embassy of a country whose regime is generally not regarded as being very friendly to said freedom, or indeed of that country criticising the UK as imperialist whilst simultaneously violating the UK’s sovereignty by unlawfully harbouring a fugitive from justice. But while this BBC interview is a continuation of a long tradition on his part, I must say that until I had watched it I had not realized just how absolutely awful and cringe-worthy Assange is as a human being – he was not simply uncivil to the unfortunate BBC journalist interviewing him (herself admittedly not say an Edward R. Murrow), but was a first rate, frothing at the mouth kind of bully. His frequently completely uncritical supporters may want to take note.

My favourite moment in the interview comes at about 3:35 when he says, apparently as conclusive evidence that the UK Supreme Court decision dismissing his appeal against extradition to Sweden was completely wrong, that ‘in two academic articles [holding up two fingers] the Cambridge International Law Journal has condemned the findings of the Supreme Court.’ He is in fact referring to these two blog posts by Tiina Pajuste and Cameron Miles (both of which I recommend, who are rightly critical of the Court’s application of Art. 31(3)(b) VCLT) on the website of the Cambridge Journal of International and Comparative Law (on whose academic review board I happily sit, in the spirit of full disclosure). Now how adorable is that? Abscoding from the law on the pretext that the decision of the highest court in the land was criticized in a blog post or two. I see much potential here!

(For our previous coverage of the Assange saga and the analysis of the pertinent legal issues readers can click on ‘Diplomatic Asylum’ in the categories tab below).

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An Indian trial on Danish soil – an odd proposal in a somewhat bizarre case

Published on October 5, 2012        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland. Previouslyjoined the School of Law in September 2012. Prior to that he worked as a legal advisor at the Danish Ministry of Foreign Affairs

It is reported that India seeks to establish a tribunal at its embassy in Copenhagen to try a Danish national for conspiracy to wage war against the Indian Government. National trials in foreign countries are not without precedent. In 1999, after the Lockerbie case, two Libyan nationals were tried before an ad hoc Scottish court set up in a former US military base in the Netherlands. After the verdict in 2001, Professor Plachta in a piece in the European Journal of International Law (2001) questioned whether the case had opened the way to a neutral venue principle to solve future disputes involving the obligation of aut dedere aut judicare ). It has taken several years, but Plachta’s suggestion might be getting further support.

India has long been seeking the extradition of Niels Holck, a Danish national known in India by his alias ‘Kim Davy’. Holck is wanted for his involvement in the 1995 ‘Purulia arms drop’ where large quantities of weapons and explosives were dropped over the Purulia district of West Bengal in India. A British national and five Russians were subsequently arrested. Holck – the alleged mastermind of the operation – escaped. His co-accused were sentenced to life imprisonment. After pressure from their respective governments all six were later released (for UK parliamentary debate, see here).

India never relented in it efforts to bring Holck to justice. It first requested extradition in 2002. The request came after a major shake-up of the Danish extradition law following the events of 11 September 2001. Prior to this, Denmark would only extradite its nationals to other Nordic countries. Holck was one of the first Danes requested for extradition south of the border. Read the rest of this entry…

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Diplomatic Asylum for Julian Assange?

Published on September 11, 2012        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany (since May 2003) and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010. In this arrest warrant Assange is charged with rape, sexual harassment and unlawful coercion against two Swedish women in Sweden. According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado. The fact that Assange was however able to go through three  tiers of the English judicial system – with the proceedings leading up to the Supreme Court Decision of 30 May 2012 lasting one and a half years – can be explained, among other things, by the fact that the implementation of the European arrest warrant within the member states varies greatly.

Against this background – exhaustion of the local legal remedies – Assange’s escape into the Ecuadorian embassy on 19 June 2012 is to be seen as the continuation of his fight with political means. Hence, it is not very surprising that in the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012 ) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (see Comunicado No. 042). Instead, President Rafael Correa on 18 August 2012 in his state-owned TV program declared that the conduct Assange is accused of was not even punishable in Latin America (see Enlace Ciudadano No. 285). If this were to be true (which is fortunately not the case, see Art. 505 et seq. of Ecuador’s own Criminal Code), it would catapult the continent back to the unbridled machismo era. In any case, Ecuador granted Assange diplomatic asylum because it considered that there was an imminent threat of him being further deported to the United States where he would be politically persecuted and cruelly treated (see Comunicado No. 042).

However, Ecuador’s decision to grant diplomatic asylum to Julian Assange is flawed as a matter of law. Nonetheless, its embassy in London remains inviolable. The Ecuadorian argument does not stand up in the light of sober legal analysis as it misreads the fundamental structure of (European) law of extradition and it employs a legal concept – “diplomatic asylum” -that is not universally recognized in international law (see this EJIL:Talk! post ). An automatic further extradition to a third state is neither possible in general extradition law nor in the European arrest warrant system. Read the rest of this entry…

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