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…