Recent Developments in the Law of Extradition

By Griffith, Gavan; Harris, Claire | Melbourne Journal of International Law, May 2005 | Go to article overview

Recent Developments in the Law of Extradition


Griffith, Gavan, Harris, Claire, Melbourne Journal of International Law


[Effective extradition procedures are an essential tool of international law enforcement, both in relation to domestic crime and, increasingly, transnational crime. New international legal frameworks are emerging with the objective of enhancing international responses to organised crime, including terrorist crimes and drug trafficking. However, at the same time as the reinforcement of international extradition obligations in instruments such as the United Nations Convention against Transnational Organized Crime, less desirable developments can be observed in the erosion, in form and in practice, of principles in extradition law which are intended to safeguard individual rights. The recognition and application of some longstanding legal principles such as the 'political offence' exception have been diluted over time, while the efficacy of others, such as the principle of specialty, has been compromised in practice. The authors argue that the important development of international extradition frameworks should be balanced against the need to ensure fair protection of requested persons.]

CONTENTS

I   Introduction
       A Emerging Multilateral Laws
       B The Exception for Fiscal Offences
       C The Need for Safeguards for the Requested Person
II  Double Criminality and Contemporary Difficulties with Its
     Application
       A The Underlying Principle
       B Dilution of the Principle
           1 Australian Jurisprudence
           2 European Jurisprudence
III The Political Offence Exception
IV  Human Rights Issues
      A An Objection to Extradition
      B Application of the Objection
V   The Principle of Specialty
VI  Other Limitations
VII Conclusion

I INTRODUCTION

As movement about the world becomes easier and crime takes on a Larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the state obliged to harbor the protected person but also tend to undermine the foundations of extradition. (1)

Extradition has become recognised as a major element of international cooperation in combating crime, particularly transnational crimes such as drug trafficking and terrorism. (2) As an eminent Australian judge recently said, '[i]n a world of increased mobility, interactive technology and new forms of criminality, extradition represents an essential response to the characteristics of contemporary crime'. (3) The request in July 2003 for the extradition of former President Alberto Fujimori to face murder charges in Peru (4) was the latest of a series of high profile extradition cases of former heads of state, including Augusto Pinochet, (5) and of businessmen, such as Australian Christopher Skase (6) and Mexican Carlos Cabal. (7)

A Emerging Multilateral Laws

In the context of organised and transnational crime, the increased recognition of this an enhanced role for extradition is emerging in a body of multilateral and bilateral treaties containing extradition provisions. In 1985, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders urged Member States to increase their activity at the international level to combat organised crime. (8) Motivated by that resolution, the UN General Assembly in 1990 adopted a Model Treaty on Extradition, (9) in recognition of 'the importance of a model treaty on extradition as an effective way of dealing with the complex aspects and serious consequences of crime, especially in its new forms and dimensions'. (10) More recently, the United Nations Convention against Transnational Organized Crime was adopted, with 147 signatories. (11) The Organized Crime Convention, which now has 105 States Parties, entered into force on 29 September 2003. (12) The Organized Crime Convention, as its name suggests, attempts to introduce strategies to combat organised criminal activity including money laundering, corruption and other activities of organised criminal groups. …

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