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Home Archive for category "Extradition" (Page 2)

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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The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

Read the rest of this entry…

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Breaking: Ecuador Grants Asylum to Julian Assange

Published on August 16, 2012        Author: 

BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.

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Enter at Your Own Risk

Published on August 16, 2012        Author: 

Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.

The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:

[I]f—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.

The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.

Read the rest of this entry…

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“Without further delay” – Senegal must prosecute or extradite Hissène Habré

Published on July 24, 2012        Author: 

On 20 July 2012, the International Court of Justice (ICJ) issued its final judgment (summary found here; press release found here) in the proceedings brought by the Kingdom of Belgium against the Republic of Senegal concerning the desired prosecution of Chad’s former head of state, Mr. Hissène Habré – a now long-term resident of Dakar. The victory rests with Belgium, which has sought Habré’s prosecution in Senegal, or his extradition from Senegal to Belgium, for mass acts of torture committed in Chad during his presidency from 1982-1990, with the ICJ recognizing that: “Extradition and prosecution are alternative ways to combat impunity” (para. 50).

However, the victory (in this case concerning “Questions relating to the obligation to prosecute or extradite”) was secured by a refinement, or narrowing, of the basis for the complaint. In its 2009 Application instituting proceedings, Belgium had argued that Senegal was obliged to bring criminal proceedings against Mr. Habré as a matter of customary international law concerning core international crimes, but by 2012, the focus of the inquiry had shifted to the more specific obligations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (or CAT to use the summarizer’s short-form), with the ICJ making clear that any state party to a treaty such as the CAT or the Genocide Convention (paras 68-69) has a “common interest in compliance” and can make a claim concerning the cessation of an alleged breach by another state party (thus sidestepping the question of whether Belgium is an injured state or has a special interest). The ICJ has confirmed that the obligations of the CAT may be defined as “obligations erga omnes partes” in the sense that each state party has an interest in compliance with them in any given case (although this point does receive discussion in the separate opinion of Judge Skotnikov). The issue of whether there exists an obligation for a state to prosecute crimes under customary international law that were allegedly committed by a foreign national abroad is expressly left for another day (para. 54) (with Judge Abraham in a separate opinion putting down a marker that in his view, there is no such customary rule).

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Julian Assange and Diplomatic Asylum

Published on June 24, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg and an associate tenant at 3 Hare Court, London .

In taking refuge in the Ecuadorian embassy in London, Julian Assange joins a long list of individuals who have sought asylum in foreign embassies.  Recent examples include Chongqing police chief Wang Lijun in the US consulate in Chengdu, and blind Chinese dissident Chen Guangcheng in the US embassy in Beijing.  However, although embassy premises are legally inviolable, general international law does not recognise a right of diplomatic asylum.  Even if Ecuador does grant Assange asylum, the UK will not be obliged to grant him safe passage out of the country.

In 1949, Victor Raúl Haya de la Torre, leader of the Peruvian APRA movement, sought refuge in the Colombian embassy in Lima.  The dispute between Colombia and Peru as to whether he could be granted diplomatic asylum went twice to the International Court of Justice in The Hague. In its judgment in the Asylum Case, the Court ruled that no general rule in international law existed permitting States to grant diplomatic asylum; a legal basis had to be established in each particular case.  Read the rest of this entry…

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