Trial and Tribulation: Extraditing Accused Terrorists. (Global Notebook)

By Fujii, Rina | Harvard International Review, Summer 2002 | Go to article overview

Trial and Tribulation: Extraditing Accused Terrorists. (Global Notebook)


Fujii, Rina, Harvard International Review


In a modern world where crimes are international, extradition is an issue of growing importance. After the September 11 terrorist attacks, the problems with extradition have become increasingly clear.

The United States' decision to try accused terrorists before a military tribunal has made extradition a controversial subject since many countries are unwilling to hand residents over to the unorthodox legal environment that may await them. Unwilling to rule out the use of military tribunals, the US government has conducted extradition negotiations on a case-by-case basis. These complicated procedures are hindering effective legal action, and this situation highlights the need for a comprehensive international extradition agreement.

Even before the United States began experiencing difficulties in obtaining suspected terrorists from other nations, extradition was a serious problem in US foreign policy. The United Nations defines extradition as the surrender by one state to another of a person accused or convicted of a crime "by virtue of a treaty, reciprocity, or comity as between the respective states," in order to "restore a person to an authority competent to exercise jurisdiction over him or her." Such action is most often conducted through bilateral and multilateral treaties. Unfortunately, many states lack extradition treaties with other states; only large nations like the United States and United Kingdom have such treaties with most countries. Case-by-case agreements are common among states without reciprocal treaties for extradition. These, however, are troublesome because their success depends on the current political climates within and the relationship between the two countries involved.

The United Nations has made efforts to improve the current patchwork of treaties that compose international agreements. Its most extensive measure was the Model Treaty on Extradition, created by the Committee on Crime Prevention and Control in 1990. This treaty allows states to request the extradition of a person from any state if they present documentation of an offense in accordance with the rule of double criminality. This condition is fulfilled when the alleged crime is punishable in both nations and when the state in possession lacks a valid reason for refusal. Drafters of the Model Treaty had hoped that countries would use the guidelines set forth to develop extradition treaties with fundamental commonalities. Ultimately, the United Nations hopes to harmonize all legal codes and penal systems. Understandably, however, a single multilateral treaty is extremely difficult to achieve due to legal and cultural differences between states.

The death penalty is one of the foremost reasons for the United States' current imbroglio with European nations holding suspected terrorists in their custody. Under a military tribunal, approved by US President George Bush as the applicable judicial procedure for terrorists, defendants can be executed if convicted. This is a serious concern for the European Union, whose 15 member states have all renounced the death penalty and follow a policy by which no member state will comply with extradition requests unless assured that the death penalty will not be sought or applied.

The reluctance of EU members to surrender suspects to the United States also stems from the alleged violation of human rights under the US military tribunals. The use of hearsay evidence, which is allowed in tribunals, is forbidden in the United Kingdom and Ireland. In addition, the participation of US military officers as judges, the inability of the defendants to choose their own counsel, and the secrecy of the trials make military tribunals incompliant with the fair trial standards required in Article 6 of the European Union's Convention on Human Rights. Graham Watson, the chairman of the Justice Committee of the European Parliament, has said that extradition would not be a problem if trials were in a regular civilian court but has warned that "rights would not be respected or could not be guaranteed to be respected under military tribunals. …

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