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Indirect Enforcement of International Criminal Law

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Multilayered Structures of International Criminal Law

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Abstract

Crimes under international law in the strict sense, or core crimes, not only are prosecuted at international judicial organs but are also regulated in national legal orders. Meanwhile, crimes under international law in the broad sense are prosecuted only at the national level in principle. Thus, international rules relevant to indirect enforcement generally play a significant role in the regulation of crimes under international law. This chapter overviews basic international rules on the adjustment and cooperation among states that are involved in the regulation of international crimes. The following first examines various principles on the allocation of state jurisdiction in criminal matters and then examines patterns of international cooperation in this field. The latter includes the extradition of alleged perpetrators of crimes, mutual legal assistance on the gathering of evidence abroad, the transfer of sentenced persons, and the transfer of criminal proceedings.

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Notes

  1. 1.

    See Sect. 7.2 of Part III.

  2. 2.

    For instance, Article 3 of the International Convention for the Suppression of Terrorist Bombings provides, “[t]his Convention shall not apply where the offence is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under article 6, paragraph 1, or article 6, paragraph 2, of this Convention to exercise jurisdiction, … .” Article 3 of the International Convention for the Suppression of the Financing of Terrorism and Article 3 of the International Convention for the Suppression of Acts of Nuclear Terrorism provide for in the same way.

  3. 3.

    Article 3 of the CTOC provides that the Convention applies where the crime is transnational in nature and specifies that the crime is transnational if: “(a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that Engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.” Article 4 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime also provides that the Protocol shall apply where the crime is transnational in nature.

  4. 4.

    S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7), pp. 18–19.

  5. 5.

    “The governing principle of enforcement jurisdiction is that a state cannot take measures on the territory of another state by way of enforcement of its laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, and orders for production of documents may not be executed on the territory of another state, except under the terms of a treaty or other consent given” (Crawford 2019, p. 462). See also Allen (2019), pp. 384–385; Currie (2016), pp. 69–74.

  6. 6.

    For instance, Council Regulation (EC) No 1206/2001 of 28 May 2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters provides in Article 17 that a request to take evidence directly in another member state shall be submitted “to the central body or the competent authority” (Paragraph 1), while such a request “may only take place if it can be performed on a voluntary basis without the need for coercive measures” (Paragraph 2). Also, as will be referred to below, civil law states expressed their views in the drafting of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, that evidence taking even from a willing witness is regarded as a violation of sovereignty. See Sect. 6.3.2.2 below. Akehurst discussed this point from two aspects. First, the exercise of power in the territory of another State is forbidden “if it is, by its nature, an act which only the officials of the local State are entitled to perform, as opposed to an act which private individuals may perform,” such as collecting taxes (Akehurst 1972–1973, pp. 146–147). Secondly, the exercise of power in the territory of another State is forbidden “by reason of the purpose for which the act is done.” For instance, if a State seeks information in the territory of another State for the purpose of taxing, the inquiry is recognized as a usurpation of the sovereign powers of the latter State (ibid., pp. 147–149).

  7. 7.

    Lotus, p. 19.

  8. 8.

    Ibid.

  9. 9.

    Ibid.

  10. 10.

    With regard to criticism of the judgment in Lotus, see Lowe (1984), p. 56.

  11. 11.

    Crawford (2019), pp. 462–464; Boister (2018), p. 248.

  12. 12.

    Although it is widely recognized that territorial jurisdiction generally prevails over other jurisdictional basis (Vagts 1984, pp. 46–47), case by case evaluation of the “reasonableness” of respective contentions on jurisdiction has also been suggested (ibid., p. 47).

  13. 13.

    See Boister (2018), pp. 253–255; Blakesley (2008), pp. 100–109; Gilbert (1998), pp. 87–95; Gilbert (1991), pp. 40–43.

  14. 14.

    See Boister (2018), pp. 253–255; Gilbert (1998), pp. 87–88; Akehurst (1972–1973), pp. 152–153. The judgment in Lotus stated, “… it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there. …Again, the Court does not know of any cases in which governments have protested against the fact that the criminal law of some country contained a rule to this effect or that the courts of a country construed their criminal law in this sense” (Lotus, p. 23).

  15. 15.

    With respect to the problem of extraterritorial enforcement, see Sect. 6.3.2.2.

  16. 16.

    “Developments in the Law, Extraterritoriality,” Harvard Law Review 124 (2011) [hereinafter Developments in the Law], pp. 1254–1255; Layton and Parry (2004), pp. 309–322; Stevens (2002), pp. 276–281.

  17. 17.

    See for details, ibid., pp. 281–283, 294–301.

  18. 18.

    With respect to the concept of “passive” legal assistance, see Mueller (1961), p. 199. See also Sect. 6.3.2.2.

  19. 19.

    Notwithstanding productive cooperation made under the Agreement, some state practice has actually prompted concern that cooperation breaks down when faced with clashing national interests (Stevens 2002, p. 284). With respect to various challenges that threaten the institutional framework of cooperation, such as the differing aims of respective competition laws, differing substantive rules, differing procedures, and the influence of respective economic interests, see ibid., pp. 283–294.

  20. 20.

    See also other agreements listed in the “List of Fifteen Co-operation Agreements,” OECD Inventory of International Co-operation Agreements on Competition, http://www.oecd.org/daf/competition/competition-inventory-list-of-cooperation-agreements.pdf, Accessed 29 May 2021.

  21. 21.

    See Lamendola (1999), pp. 694–697. See also Sornarajah (1999), p. 413 for an example of UK judgment.

  22. 22.

    See Sections 402 & 409, Restatement of the Law Fourth: The Foreign Relations Law of the United States: Selected Topics in Treaties, Jurisdiction, and Sovereign Immunity (St. Paul, MN: American Law Institute Publishers, 2018) [hereinafter Restatement Fourth], §§402, 409; Akehurst (1972–1973), pp. 153–155.

  23. 23.

    See Layton and Parry (2004), pp. 311, 313; Jennings and Watts (1996), pp. 475–476; §405 of Restatement Fourth; Schacter (1982), pp. 249–258.

  24. 24.

    “BNP Paribas Agrees to Plead Guilty and to Pay $8.9 Billion for Illegally Processing Financial Transactions for Countries Subject to U.S. Economic Sanctions,” Justice News (The United States Department of Justice, Office of Public Affairs), 30 June 2014, https://www.justice.gov/opa/pr/bnp-paribas-agrees-plead-guilty-and-pay-89-billion-illegally-processing-financial.

  25. 25.

    Coppola (2014).

  26. 26.

    “BNP Paribas ‘$10bn’ US Fine Unreasonable, Says France,” BBC News, 3 June 2014, https://www.bbc.com/news/business-27676000, Accessed 29 May 2021.

  27. 27.

    Smith and Parling (2012), pp. 238–239.

  28. 28.

    Ibid., p. 239.

  29. 29.

    §78dd-3(a) of the Act.

  30. 30.

    “It Doesn’t Take Much: Expansive Jurisdiction in FCPA Matters,” Litigation (New York: Shearman & Sterling, LLP), March 2009, https://www.shearman.com/~/media/Files/NewsInsights/Publications/2009/03/It-Doesnt-Take-Much-Expansive-Jurisdiction-in-FC__/Files/View-Full-Text/FileAttachment/LT030409ExpansiveJurisdictioninFCPAMatters.pdf#search=‘It+doesn%E2%80%99t+take+much%3A+Expansive+jurisdiction+in+FCPA+matters’, Accessed 29 May 2021; Brown (2001), pp. 303–317.

  31. 31.

    Willborn (2013), p. 426; Brown (2001), pp. 283–289.

  32. 32.

    The assistance may be either active or passive legal assistance. See Sect. 6.3.2.2 of Part II.

  33. 33.

    The case that a significant portion of entities that have been sanctioned under the US FCPA are foreign corporations has led to the suspicion that such extraterritorial enforcement measures are made with the intention of supporting US competitors. See Smith and Parling (2012), pp. 254–255. Extraterritorial enforcement on the basis of questionable jurisdictional ground may further enhance such suspicion. Meanwhile, it may also be the case that a lack of any regulation on non-US entities would put US entities under significant disadvantages in this field.

  34. 34.

    Crawford (2019), pp. 448.

  35. 35.

    See for details, ibid., pp. 448–450; Jennings and Watts (1996), pp. 479–484.

  36. 36.

    Dubber (2013), pp. 269–270; Blakesley (2008), pp. 117–118; Shearer (1963), pp. 281–287. With regard to Latin American practice, which is similar to that of continental Europe, see ibid., pp. 291–294.

  37. 37.

    Ibid., pp. 276–280, 287–291. See also Blakesley (2008), pp. 119–121.

  38. 38.

    Vagts (1984), pp. 44–46.

  39. 39.

    See generally, Developments in the Law, pp. 1247–1248.

  40. 40.

    Ibid., pp. 1247–1250. With regard to the objections made by European states against US extraterritorial enforcement in the 1980s, see generally, Kuyper (1984), pp. 72–96; Lowe (1984), pp. 54–71.

  41. 41.

    Comments of the European Community on the Amendments of 22 June 1982 to the U.S. Export Regulations, 12 August 1982: US-EC Dispute over the Gas Pipeline from Siberia to Western Europe, http://aei.pitt.edu/1768/1/US_dispute_comments_1982.pdf [hereinafter Comments of the European Community], pp. 1–2, Accessed 29 May 2021.

  42. 42.

    Section 11 of the Act. The Act also provides for administrative sanctions including civil penalties (Section 11(c)). See for details, Bridge (1984), pp. 4–6.

  43. 43.

    Comments of the European Community, p. 20.

  44. 44.

    “European Union: Demarches Protesting the Cuban Liberty and Democratic Solidarity (Libertad) Act,” International Legal Materials 35 (1996), pp. 397–398. US trade embargo against Cuba gave rise to strong protests by third states when the Cuban Democracy Act, 1992, was legislated. § 6005(a)(1) of the Act amended § 515.559 of the Cuban Assets Control Regulations and prohibited export licenses to US-owned or controlled foreign firms. Violation of the Act as well as the Regulation includes criminal fines, imprisonment, and civil penalties under § 6009(d) of the Act and § 515.701(a) of the Regulation (Herd 1994, pp. 406–407). Section 102(c) of the Helms-Burton Act provides that the Cuban Assets Control Regulations shall be fully enforced.

  45. 45.

    Council Regulation (EC) No 2271/96 of 22 November 1996 Protecting Against the Effects of the Extra-Territorial Application of Legislation Adopted by a Third Country, and Actions Based Thereon or Resulting Therefrom, Official Journal of the European Community, No L 309, 29 November 1996. With regard to legal questions on the Helms-Burton Act, see Fairley (1996), pp. 161–213; Reinisch (1996), pp. 545–562.

  46. 46.

    De la Serna (2016), pp. 36–46; Layton and Parry (2004), pp. 317–318; Kuyper (1984), pp. 79–81.

  47. 47.

    Ibid., p. 80.

  48. 48.

    De la Serna (2016), p. 39.

  49. 49.

    Kuyper (1984), p. 81.

  50. 50.

    With regard to the problems of the exercise of the passive personality principle, see Echle (2013), pp. 60–61; Blakesley (2008), pp. 122–123.

  51. 51.

    See Article 7 of the Draft Convention on Jurisdiction with Respect to Crime, which was adopted by academics under the auspices of Harvard Law School (Supplement to the American Journal of International Law 29 (1935), pp. 440, 543–561). Article 8 of the Draft Convention provides that the protective principle is also applicable to counterfeiting (ibid., pp. 440, 561–562). See also Blakesley (2008), pp. 108–115; Gilbert (1991), pp. 43–45; “Recent Developments: Protective Principle of Jurisdiction Applied to Uphold Statute Intended to Have Extra-territorial Effect,” Columbia Law Review 62 (1962), pp. 371–375. With regard to recent state practice in which the protective principle was applied on the regulation of transnational drug trafficking, see Boister (2018), pp. 262–263.

  52. 52.

    See Akehurst (1972–1973), pp. 158–159.

  53. 53.

    See Sect. 6.3.4.

  54. 54.

    See Inazumi (2005), pp. 25–28, 101–105; Reydams (2003), pp. 28–42. See also Sect. 6.2.6.2 below.

  55. 55.

    The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, and conventions on the regulation of various types of terrorism provide for an obligation to apply the principle of aut dedere aut judicare. However, these crimes do not comprise core crimes by themselves. They may be recognized as war crimes only where they are committed in the context of armed conflicts, and as crimes against humanity only where they are committed as part of a widespread or systematic attack against civilians.

  56. 56.

    Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, paras. 79–82.

  57. 57.

    Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 23. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 [hereinafter Application of the Genocide Convention], para. 161.

  58. 58.

    With regard to the arguments of the French delegate, see U.N. Doc., E/AC.25/SR.8, pp. 6–7, 10–11 (cited in Stigen 2010, p. 104).

  59. 59.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, 1.C.J. Reports 1996, para. 31.

  60. 60.

    Application of the Genocide Convention, para. 154.

  61. 61.

    Ibid., para. 442. See also ibid., para. 184.

  62. 62.

    See for details, Pall (2008–2009), pp. 13–34.

  63. 63.

    The accused was detained in the Netherlands at the time of the proceedings at the ICTR (Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, Rule 11bis of the Rules of Procedure and Evidence, Prosecutor v. Michel Bagaragaza, ICTR-2005-86-11bis, 13 April 2007 [hereinafter Bagaragaza, 2007], para. 13).

  64. 64.

    Ibid., paras. 23, 28.

  65. 65.

    Ibid., para. 28. Meanwhile, the ICTR rejected the request of Norway to refer the same case to the Norwegian national court, since Norwegian national law treats the crime of genocide as an ordinary crime (Decision on Rule 11bis Appeal, Prosecutor v. Michel Bagaragaza, ICTR-05-86-AR11bis, 30 August 2006, paras 16–17). The Appeals Chamber states, “in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the ‘ordinary crime’ of homicide. … The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives” (ibid., para. 17).

  66. 66.

    Van Schaack and Perovic (2013), p. 239.

  67. 67.

    With regard to crimes against humanity, the ILC has adopted the Draft Articles on Prevention and Punishment of Crimes Against Humanity that provides for the principle of aut dedere aut judicare. See Articles 3, 7, 10 of the Draft Articles on Prevention and Punishment of Crimes Against Humanity, Report of the International Law Commission, Seventy-first Session, U.N.Doc., A/74/10 (2019), pp. 13–15.

  68. 68.

    The study on customary international humanitarian law conducted by the ICRC indicates that the exercise of universal jurisdiction is recognized for the prosecution of war crimes in general. See International Committee of the Red Cross, IHL Database: Customary IHL, Rule 157. Jurisdiction over War Crimes, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule157, Accessed 29 May 2021. With respect to academic writings that recognize the right under international law to exercise universal jurisdiction on crimes against humanity and war crimes other than grave breaches of the Geneva Conventions, see Naqvi (2010), p. 113; Werle and Jessberger (2020), p. 97; Jessberger (2009), p. 556; Inazumi (2005), pp. 139–140; Kress (2000), pp. 168–170. See also Cryer et al. (2019), pp. 56–68.

  69. 69.

    Decision on the Prosecutor’s Motion to Withdraw the Indictment, Prosecutor v. Bernard Ntuyahaga, ICTR-98-40-T, 18 March 1999, para. 1. The ICTY decision on Tadić further stated that the exercise of universal jurisdiction is generally recognized for the prosecution of international crimes (Tadić, Decision on the Defence Motion), para. 62.

  70. 70.

    Bagaragaza, 2007, paras 13–15.

  71. 71.

    Geneuss (2009), pp. 946–947.

  72. 72.

    AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction: Report, in The AU-EU Expert Report on the Principle of Universal Jurisdiction, 8672/1/09, REV 1, 16 April 2009 [hereinafter AU-EU Expert Report], para. 9. With respect to the Report, see generally Mennecke (2017), pp. 16–21.

  73. 73.

    At least, it is not actually the case that national proceedings based on universal jurisdiction have mainly been conducted against African nationals. See the analysis of relevant state practice up to the early 2010s in Langer (2011), pp. 41–42.

  74. 74.

    AU-EU Expert Report, paras 33–38. See also Jeβberger (2014), pp. 159–162.

  75. 75.

    AU-EU Expert Report, para. 33.

  76. 76.

    Mennecke (2017), pp. 21–32; Erakat (2013), pp. 268–271.

  77. 77.

    Van Schaack and Perovic (2013), p. 239.

  78. 78.

    Ibid.

  79. 79.

    In the 2010s, the ILC dealt with the issue of customary international law status of the obligation to extradite or prosecute on the basis of the universality principle. However, there was a general disagreement with respect to the evaluation of the development of relevant customary international rules and the Commission decided not to proceed with the drafting on this topic. See U.N. Doc., General Assembly Official Records, 69th Session, Supplement No. 10, A/69/10 (2014), pp. 160–161.

  80. 80.

    Schwarzenberger (1950), pp. 290–291.

  81. 81.

    Scharf (2012), pp. 374–379. Meanwhile, the judgments of the so-called Subsequent Proceedings, which were held after the Nuremberg Trial by national judicial organs of the Allied Powers in respective occupying zones in Germany, specifically regarded their proceedings as the exercise of universal jurisdiction. See ibid., p. 377.

  82. 82.

    Kelsen (1947), pp. 167–169; Schwelb (1946), pp. 208–211.

  83. 83.

    IMT, Vol. 1, p. 218.

  84. 84.

    The Charter and Judgment of the Nürnberg Tribunal—History and Analysis: Memorandum Submitted by the Secretary-General, U.N. Doc., A/CN.4/5 (1949), p. 80; Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. Doc., S/25274, 10 February 1993, para. 73. See Scharf (2012), p. 376.

  85. 85.

    Nonetheless, as the defendants at the Nuremberg Trial were German nationals, it can be said that the jurisdictional basis that was actually required for the administering states was just the territoriality principle and personality principle as adopted on behalf of Germany.

  86. 86.

    Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, U.N. Doc., A/RES/95(I) (1946).

  87. 87.

    Scharf (2012), pp. 374–379.

  88. 88.

    Langer (2011), pp. 37–38.

  89. 89.

    Ibid.

  90. 90.

    Ibid., p. 38.

  91. 91.

    Ibid., p. 40.

  92. 92.

    Ibid., p. 40.

  93. 93.

    Kaleck (2009), p. 932.

  94. 94.

    Ibid., pp. 933–934. See also Langer (2011), pp. 29–30; Stigen (2010), pp. 110–111.

  95. 95.

    Langer (2011), pp. 29–30; Kaleck (2009), pp. 934–935.

  96. 96.

    Kaleck (2009), p. 934.

  97. 97.

    Ibid.

  98. 98.

    Ibid., p. 943.

  99. 99.

    Ibid., p. 948.

  100. 100.

    Ibid., p. 946.

  101. 101.

    Zappalà (2006), pp. 602–603. See also Stigen (2010), p. 113.

  102. 102.

    Langer (2011), p. 25.

  103. 103.

    It is not the case that criminal proceedings in absentia in national courts are generally prohibited under international law. Negative reactions of concerned states have been conspicuous especially where such proceedings are conducted in exercising universal jurisdiction without any links with the crime in question.

  104. 104.

    See for details, Stigen (2010), p. 113.

  105. 105.

    Langer (2011), p. 40.

  106. 106.

    Kaleck (2009), p. 943.

  107. 107.

    Ibid., p. 952; Langer (2011), p. 14.

  108. 108.

    Kaleck (2009), p. 952.

  109. 109.

    Ibid., p. 937. This decision was made in taking account of the view presented by the French Ministry of Foreign Affairs. See Langer (2011), p. 25.

  110. 110.

    Kaleck (2009), p. 942.

  111. 111.

    Ibid., p. 941; Langer (2011), pp. 15–16.

  112. 112.

    Ibid.

  113. 113.

    Erakat (2013), pp. 267–268.

  114. 114.

    With respect to this point, see also discussions at the United Nations General Assembly and AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction, which is analyzed in Mennecke (2017), pp. 16–35.

  115. 115.

    Geneuss (2009), pp. 953–959. See also Stigen (2010), pp. 130–137. For instance, the Report of the AU-EU Technical Ad hoc Expert Group on the Principle of Universal Jurisdiction evaluates the requirement of complementarity or subsidiarity but does not regard such requirement as obligatory under international law (Recommendations, AU-EU Expert Report, pp. 42–43).

  116. 116.

    There is also another type of obligation such as that stipulated under Article 4(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, which reads that states parties “shall” establish jurisdiction over the crimes in question when alleged perpetrators are present in their territories and they do not extradite the persons on the ground that they have territorial or personal jurisdiction, while states parties “may” also establish jurisdiction when the alleged perpetrators are present in their territories and they do not extradite the persons for some other reasons.

  117. 117.

    Article 7 the Convention for the Suppression of Unlawful Seizure of Aircraft. See also Article 7 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Article 8(1) of the International Convention Against the Taking of Hostages, Article 14 of the Convention on the Safety of United Nations and Associated Personnel, Article 8(1) of the International Convention for the Suppression of Terrorist Bombings, and Article 11(1) of the International Convention for the Suppression of Acts of Nuclear Terrorism.

  118. 118.

    Nonetheless, many states including the United States grant extradition only where extradition treaties are concluded. See Restatement of the Law Third: The Foreign Relations Law of the United States, Vol. 1 (St. Paul, Minn.: American Law Institute Publishers, 1987), § 475, Comment b.

  119. 119.

    See generally, Chryssikos (2008), pp. 377–382.

  120. 120.

    Article 2(4) of the Model Treaty on Extradition provides, “[i]f the request for extradition includes several separate offences each of which is punishable under the laws of both Parties, but some of which do not fulfil the other conditions set out in paragraph 1 of the present article, the requested Party may grant extradition for the latter offences provided that the person is to be extradited for at least one extraditable offence.”

  121. 121.

    United Nations Office on Drugs and Crime, Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, p. 12.

  122. 122.

    Ibid.

  123. 123.

    Williams (1993), p. 298; Gardocki (1993), pp. 289; Williams (1991), p. 582.

  124. 124.

    O’Keefe (2015), p. 36, fn. 162; Gardocki (1993), p. 289.

  125. 125.

    Gardocki (1993), pp. 289, 294–295; Williams (1991), p. 582. Feller stated, “[e]xtradition is from every point of view a criminal proceeding albeit on the international level; … and like all criminal proceedings, it is subject to the principle of legality” (Feller 1975, p. 80). See also Echle (2013), pp. 61–62.

  126. 126.

    Zagaris (1998), pp. 1423–1433; Gilbert (1991), pp. 48–52.

  127. 127.

    Furthermore, Article 44(2) of the Convention recognizes the exception of the principle of double criminality in stating, “[n]otwithstanding the provisions of paragraph 1 of this article, a State Party whose law so permits may grant the extradition of a person for any of the offences covered by this Convention that are not punishable under its own domestic law.”

  128. 128.

    Gully-Hart (2008), pp. 359–360.

  129. 129.

    Gilbert (1998), pp. 117–119; Gilbert (1991), pp. 55–56.

  130. 130.

    Chapter II of the Protocol. See Gully-Hart (2008), p. 360.

  131. 131.

    Gilbert (1991), pp. 52–54.

  132. 132.

    Article VI(1) of the Treaty provides, “[w]hen the offense for which extradition is requested has been committed outside the territory of the requesting Party, the requested Party shall grant extradition if the laws of that Party provide for the punishment of such an offense committed outside its territory, or if the offense has been committed by a national of the requesting Party.” See also Article VII of the Treaty on Extradition Between Japan and the Republic of Korea, 2002.

  133. 133.

    See for details, Williams (1991), pp. 598–599. See also Gilbert (1998), pp. 112–116. Many of the extradition treaties that Canada concluded have the same character (Williams 1991, pp. 615–618). Jurisdictional double criminality is also upheld in the practice of France and the United States (Blakesley 2000, pp. 47–49).

  134. 134.

    See generally, Bantekas and Nash (2007), pp. 338–341; Warbrick and McGoldrick (1999), pp. 958–965.

  135. 135.

    Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 237. The judgment also examined jurisdictional double criminality with regard to the crime of conspiracy to commit torture.

  136. 136.

    Shearer (1971), p. 249.

  137. 137.

    Gilbert (1998), pp. 204, 208–209.

  138. 138.

    Shearer (1971), pp. 166–167.

  139. 139.

    Deere (1933), pp. 248–249; Gilbert (1991), pp. 118–119.

  140. 140.

    The concept of this type of political crime is recognized in the United States, Latin America, and Europe. See Gilbert (1998), p. 216.

  141. 141.

    Deere (1933), pp. 252–255. See also, Gilbert (1991), pp. 116–117.

  142. 142.

    Article 5 of the Convention Relating to Extradition Between the Member States of the European Union, 1996 also does not allow states parties to treat terrorism as a political crime.

  143. 143.

    See Gully-Hart (2008), p. 367; García-Mora (1956), p. 126.

  144. 144.

    Gully-Hart (2008), p. 367; Gilbert (1991), p. 106.

  145. 145.

    Academic writings that recognize both functions include Gully-Hart (2008), p. 367; Gilbert (1991), pp. 106–107.

  146. 146.

    As to relevant US case law, see Blakesley (2000), pp. 54–59; Boyle (1995), pp. 641–642.

  147. 147.

    See García-Mora (1956), p. 128.

  148. 148.

    See ibid., pp. 129–130. With regard to relevant US case law, see Boyle (1995), p. 641. See also Blakesley (2000), p. 54. Article 14(1)(a) of the European Convention on Extradition and Article 14(1)(b) of the Model Treaty on Extradition provide that the requirement of specialty may be evaded with the consent of the requested state.

  149. 149.

    Gilbert (1991), p. 106.

  150. 150.

    For instance, Article 14(3) of the Model Treaty on Extradition provides, “Paragraph 1 of the present article shall not apply if the person has had an opportunity to leave the requesting State and has not done so within [30/45] days of final discharge in respect of the offence for which that person was extradited or if the person has voluntarily returned to the territory of the requesting State after leaving it.”

  151. 151.

    Jennings and Watts (1996), p. 956; Shearer (1971), pp. 97–102, 110–114; Plachta (1999), pp. 94–99.

  152. 152.

    Jennings and Watts (1996), pp. 955–956; Plachta (1999), pp. 82–84; Gilbert (1991), pp. 95–99; Shearer (1971), pp. 102–110. See also Shearer (1971), pp. 114–118 for Latin American practice.

  153. 153.

    Plachta (1999), pp. 82–84. See also Shearer (1971), pp. 16–19, 102–110, 114–118.

  154. 154.

    Ibid., pp. 118–121.

  155. 155.

    For instance, Japan basically adopts the principle of non-extradition of nationals (Article 2(ix) of the Japanese Act of Extradition, 1953), but the Treaty on Extradition Between the United States of America and Japan, 1978, and the Treaty on Extradition Between Japan and the Republic of Korea, 2002, respectively recognize the extradition of nationals at the discretion of states parties. Article 5 of the former treaty provides, “[t]he requested Party shall not be bound to extradite its own nationals, but it shall have the power to extradite them in its discretion.” The latter treaty similarly provides for in Article VI(1).

  156. 156.

    Article 6(2) provides, “[i]f the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate.” Article VI(2) of the Treaty on Extradition Between Japan and the Republic of Korea provides for in the same manner.

  157. 157.

    The CTOC stipulates that states parties that do not extradite the alleged perpetrators present in their territories may establish jurisdiction for the prosecution (Article 15(4)), and especially in the case of non-extradition of nationals, obligates such states parties to submit the case at the request of the state seeking extradition to their competent authorities for prosecution (Article 16(10)). The United Nations Convention Against Corruption provides for similarly (Articles 42(3), 42(4), and 44(11)).

  158. 158.

    Article 11(2) of the Convention.

  159. 159.

    Article 10(2) of the Convention.

  160. 160.

    Article 16(11) of the Convention.

  161. 161.

    Article 44(12) of the Convention.

  162. 162.

    See Vervaele (2013), pp. 213–214.

  163. 163.

    Conway (2003), pp. 217–218. Nonetheless, among EU member states, a general principle of transnational ne bis in idem that transcends the restrictive framework of international cooperation in criminal matters has been introduced. See Vervaele (2013), pp. 218–229.

  164. 164.

    The European Convention on Extradition and Model Treaty on Extradition apparently prohibit duplicate prosecution of the same crime and not of the same criminal conduct that comprises different sorts of crimes. Such formulation of the principle of ne bis in idem in extradition resembles that on the prohibition of double jeopardy in US case law. With regard to the concept of double jeopardy in US criminal law, see Blakesley (2000), pp. 49–51.

  165. 165.

    Jhirad v. Ferrandina, 536 F.2d 478, 484–85 (2d Cir. 1976). US case law had upheld the principle of non-inquiry since the early twentieth century. See Van Cleave (1999), pp. 38–40.

  166. 166.

    Boister (2018), pp. 376–377.

  167. 167.

    Bantekas and Nash (2007), pp. 309–310.

  168. 168.

    Belarus is the only state in Europe that applies capital punishment. See Statement by the Spokesperson on Two Death Sentences in Belarus, European Union External Action, 23 January 2018, https://eeas.europa.eu/headquarters/headquarters-homepage/38599/statement-spokesperson-two-death-sentences-belarus_en, Accessed 29 May 2021.

  169. 169.

    The ICCPR as one of the so-called International Bill of Human Rights does not provide for the prohibition of the death penalty.

  170. 170.

    Article 7 reads, “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

  171. 171.

    Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), para. 104.

  172. 172.

    Ibid., para. 111.

  173. 173.

    Views of the Human Rights Committee under Article 5, Paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Chitat Ng v. Canada, Communication No. 469/1991, U.N. Doc., CCPR/C/49/D/469/1991 (1994), para. 16.4.

  174. 174.

    With regard to the trial of Eichmann, see generally, Lippman (2002), pp. 45–121; Lasok (1962), pp. 355–374.

  175. 175.

    Summary, Attorney-General of the Government of Israel v. Adolf Eichmann (Israel, District Court of Jerusalem, 1961), International Law Reports 36 (1968), pp. 5, 8.

  176. 176.

    U.N. Doc., S/RES/138 (1960), para. 1.

  177. 177.

    Judgment, Attorney-General of the Government of Israel v. Adolf Eichmann (Israel, District Court of Jerusalem, 1961), International Law Reports 36 (1968), pp. 18, 57–76.

  178. 178.

    National courts in civil law states take a similar position on this question. See Gilbert (1991), p. 193.

  179. 179.

    The judgment in Ker stated, “[t]he question of how far his forcible seizure in another country, and transfer by violence, force, or fraud, to this country, could be made available to resist trial in the State court, for the offence now charged upon him, is one which we do not feel called upon to decide, for in that transaction we do not see that the Constitution, or laws, or treaties of the United States guarantee him any protection. There are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court” (Ker v. Illinois, 119 U.S. 436, 444 (1886)). The judgment in Frisbie also stated, “[t]here is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will” (Frisbie, Warden, v. Collins, 342 U.S. 519, 522 (1952)). See Gilbert (1998), pp. 340–352; Gilbert (1991), pp. 189–192 for details.

  180. 180.

    United States v. Alvarez-Machain. 504 U.S. 655, 668–670 (1992).

  181. 181.

    Ibid., p. 669.

  182. 182.

    With regard to the development of the case law of the United Kingdom on this issue, see Gilbert (1998), pp. 352–359. See also Gilbert (1991), pp. 185–189.

  183. 183.

    R. v. Bennett (A.P.) (1993), 155 N.R. 372, 389.

  184. 184.

    Ibid., p. 397.

  185. 185.

    Article 2 of the Protocol reads, “The extradition of a person against whom a final judgment has been rendered in a third State, Contracting Party to the Convention, for the offence or offences in respect of which the claim was made, shall not be granted: (a) if the afore-mentioned judgment resulted in his acquittal; (b) if the term of imprisonment or other measure to which he was sentenced: (i) has been completely enforced; (ii) has been wholly, or with respect to the part not enforced, the subject of a pardon or an amnesty; (c) if the court convicted the offender without imposing a sanction.”

  186. 186.

    As already noted, the European Convention on Extradition was adopted under the auspices of the Council of Europe.

  187. 187.

    See for details, Gully-Hart (2008), pp. 346–347; Bantekas and Nash (2007), pp. 314–319.

  188. 188.

    See for details, Gully-Hart (2008), pp. 348–350.

  189. 189.

    In contrast to the legal framework comprising the European Convention on Extradition and two Additional Protocols thereto that were adopted by member states of the Council of Europe, the EAW reflects the objective of the EU to “become an area of freedom, security and justice” that “leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities” (Preamble (5), Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, 2002/584/JHA). For details on the difference between these two frameworks, see Plachta 2008, pp. 456–464.

  190. 190.

    The denial of non-extradition of nationals met legal challenges in the constitutional courts of several EU member states. See Gully-Hart (2008), pp. 349–350; Plachta (2008), pp. 463–464.

  191. 191.

    The European Convention on Extradition does not have provisions on the principle of double criminality.

  192. 192.

    Preamble, para. 12.

  193. 193.

    Ibid., para. 10. Such determination is made under Article 7(1) of the Treaty on European Union.

  194. 194.

    Ibid., para. 12.

  195. 195.

    Ibid., paras. 13–14. With respect to the problems of human rights protection under the EAW, see Rijken (2010), pp. 1472–1492.

  196. 196.

    Article 5(j) of the Vienna Convention on Consular Relations, 1963, provides that “transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State” is one of the consular functions.

  197. 197.

    With respect to the Convention, see Zagaris (2008), pp. 386–387.

  198. 198.

    See Gully-Hart (1995), pp. 284–285.

  199. 199.

    Article 18(9) of the Convention reads, “[s]tates Parties may decline to render mutual legal assistance pursuant to this article on the ground of absence of dual criminality. However, the requested State Party may, when it deems appropriate, provide assistance, to the extent it decides at its discretion, irrespective of whether the conduct would constitute an offence under the domestic law of the requested State Party.” National laws vary on the treatment of the principle of double criminality (Boister 2018, pp. 319–321).

  200. 200.

    The Swiss government indicated, on the ratification of the European Convention on Mutual Assistance, that the application of the principle of double criminality for compulsory measures is grounded on the idea that personal rights should not be restricted with regard to conduct that is lawful in the place of residence, and the denial of such an idea would contradict the “sense of justice of the public and to the public order.” See Frei and Trechsel (1990), p. 84.

  201. 201.

    Article 18(19) of the Convention provides, “The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person.”

  202. 202.

    Van den Wyngaert (1999), p. 179. With respect to police cooperation, see generally, ibid., pp. 178–192; Rijken (2010), pp. 1457–1472; Joubert and Bevers (1996), pp. 25–42, 443–460.

  203. 203.

    It is criticized that Article 39(2) does not refer to oral information. See Van den Wyngaert (1999), p. 179. With respect to the question of international regulation on the exchange of information among administrative organs in general, see Gully-Hart (2005), pp. 27–48.

  204. 204.

    The United States has also been active in international joint investigations. See Zagaris (1998), pp. 1412–1421.

  205. 205.

    Mueller (1965), p. 417; Mueller (1961), p. 199. Active legal assistance is also recognized among common law states, but this is not necessarily the dominant mode of assistance among them, as will be seen below. Especially in common law states where the adversarial system is adopted, the defense is put under significant disadvantages in evidence gathering. In the aspect of active legal assistance, US national law, for instance, does not allow defendants to gather foreign evidence in making use of mutual legal assistance so that they may only rely on the traditional letters rogatory system. See Richardson (2008), pp. 354–356; Zagaris (2008), pp. 390–391; Zagaris (1998), pp. 1448–1449.

  206. 206.

    Article 4(2) of the Convention reads, “[t]he requested Member State shall execute the request for assistance as soon as possible.”

  207. 207.

    Abbell (1995), pp. 297–298. See also Heymann (1990), p. 103. Nonetheless, “[i]f foreign officials, other than members of diplomatic or consular missions, engage in the securing of testimony in the United States, the Department of State expects to receive advance notification of that fact” (Ristau 1978, p. 434). Under the adversarial system, defendants are also disadvantaged in this aspect and may only resort to restrictive methods such as obtaining their own records abroad or hiring private investigators if they can afford them. See Richardson (2008), p. 351. See also Gully-Hart (1995), pp. 277–278.

  208. 208.

    Mueller (1965), pp. 430–431; Mueller (1961), p. 199.

  209. 209.

    See Zagaris (1999), pp. 457–458; Zagaris (1995), pp. 357–360. For instance, the US court issued a subpoena to the US branch of the Canadian banking corporation, ordering the production of financial documents located in other branches in the Bahamas, the Cayman Islands, and Antigua (see for details, Gyandoh 2001, pp. 95–97). Also, with respect to the trans-border search for electronic data, the United States legislated the Clarifying Lawful Overseas Use of Data Act, 2018 (CLOUD Act) to obligate a service provider to disclose information pertaining to a customer or subscriber whether or not such information “is located within or outside of the United States.” See Allen (2019), pp. 404–406. §431 of the Restatement Fourth indicates that an order of US court directed to parties to take actions abroad is the exercise of adjudicative jurisdiction. Reporters’ Notes of the section state, “courts in the United States have considered orders directed to parties properly before them as exercise of jurisdiction to adjudicate rather than jurisdiction to enforce. Courts in the United States routinely order such parties to take actions outside the territory of the United States” (Reporters’ Notes, Restatement Fourth, §431, para. 2).

  210. 210.

    With respect to various state practices on the cross-border gathering of electronic evidence, for instance, see Currie (2016), pp. 76–84, 91–93.

  211. 211.

    Spinellis (1999), p. 378. Article 271 of the Swiss Penal Code provides, “[w]hoever, on Swiss territory, without being authorized so to do, takes on behalf of a foreign state any action ascribable to public powers; whoever would take such action on behalf of a foreign party or another foreign organization; whoever encourages such action, shall be punished by imprisonment (3 days to 3 years) and in serious cases by severe imprisonment (1 year to 20 years)” (Ibid). See also Jones (1953), pp. 519–521; Frei and Trechsel (1990), p. 78. On the drafting of the Treaty on Mutual Assistance in Criminal Matters, which was adopted between Switzerland and the United States in 1973, Switzerland even rejected the US proposal to allow informal interviews of witnesses in Switzerland from the perspective that “intervention of the state iure imperii” is not permitted (ibid., p. 92). “Despite detailed attempts during the course of Treaty negotiations to ensure that any interview granted would really be free of compulsion, the Swiss still feared that consent would not always be voluntary, or even that the United States might install permanent agencies of inquiry in Switzerland” (ibid).

  212. 212.

    Many of the civil law states that participated in the drafting of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters regarded evidence taking even from a willing witness as a violation of sovereignty. A questionnaire circulated to participating governments prior to the negotiations contained the question, “[i]s there in your State any legal provision or any official practice, based on concepts of sovereignty or public policy, preventing the taking of voluntary testimony for use in a foreign court without passing through the courts of your State?” Eight out of the twenty replies by the governments of Egypt, France, West Germany, Italy, Luxembourg, Norway, Switzerland, and Turkey expressed that they objected to unauthorized evidence taking (Société nationale industrielle aérospatiale and Société de construction d’avions de tourisme, Petitioners v. United States District Court for the Southern District of Iowa, etc., 482 U.S. 522, 557–558, fn. 13 (1987)).

  213. 213.

    For instance, the German government filed an amicus curiae brief in In Re Anschuetz & Co., GmbH, Petitioner in stating that an order of the US court to produce documents located in Germany would violate German sovereignty unless a letter of request was transmitted as specified by the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (In Re Anschuetz & Co., GmbH, Petitioner, 754 F.2d 602, 605 (5th Cir. 1985)). The government of France presented the same position in its amicus curiae brief in Société nationale industrielle aérospatiale (Société nationale industrielle aérospatiale, p. 529, fn. 11). Even the extraterritorial transmission of a judicial document may give rise to international frictions. In the context of civil litigation, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, indicates in Article 10(a) that a state of destination may object to other states parties “send[ing] judicial documents, by postal channels, directly to persons abroad.”

  214. 214.

    United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

  215. 215.

    See Boister (2018), pp. 330–331 for details.

  216. 216.

    Verdugo-Urquidez, pp. 259, 275.

  217. 217.

    Ibid., pp. 274–275.

  218. 218.

    See Spinellis (1999), p. 379.

  219. 219.

    With respect to the Convention, see Epp (1999), p. 566; Müller-Rappard (1991), pp. 157–159.

  220. 220.

    The Convention is designed to allow the accession of non-European states. See Epp (1999), p. 572. The Convention restrictively applies to the sentence involving the deprivation of liberty (Article 1).

  221. 221.

    Explanatory Report to the Convention on the Transfer of Sentenced Persons, 1983 [hereinafter Explanatory Report], para. 9.

  222. 222.

    Abdul-Aziz (2008), pp. 540–542; Müller-Rappard (1991), pp. 159–164; Explanatory Report, para. 10. See also Epp (1999), pp. 571–572.

  223. 223.

    Explanatory Report, para. 9; Müller-Rappard (1991), pp. 155–156.

  224. 224.

    Ibid., p. 156.

  225. 225.

    See Melkonyan (2014), p. 426; United Nations Office on Drugs and Crime, Handbook on the International Transfer of Sentenced Persons (2012), pp. 19–21.

  226. 226.

    Preamble to the Model Agreement. For details of the Model Agreement, see Abdul-Aziz (2008), pp. 530–536.

  227. 227.

    Epp (1999), pp. 578–581. See Article 9 of the Convention on the Transfer of Sentenced Persons, as well as Paragraph 14 of the Model Agreement on the Transfer of Foreign Prisoners.

  228. 228.

    See Epp (1999), pp. 578–579.

  229. 229.

    Paragraphs 15–19 of the Model Agreement.

  230. 230.

    Melkonyan (2014), pp. 425–44; Abdul-Aziz (2008), pp. 548–549.

  231. 231.

    See Melkonyan (2014), pp. 438–439.

  232. 232.

    Article 8(1) of the Convention provides for the conditions for the transfer of proceedings as follows: “A Contracting State may request another Contracting State to take proceedings in any one or more of the following cases: (a) if the suspected person is ordinarily resident in the requested State; (b) if the suspected person is a national of the requested State or if that State is his State of origin; (c) if the suspected person is undergoing or is to undergo a sentence involving deprivation of liberty in the requested State; (d) if proceedings for the same or other offences are being taken against the suspected person in the requested State; (e) if it considers that transfer of the proceedings is warranted in the interests of arriving at the truth and in particular that the most important items of evidence are located in the requested State; (f) if it considers that the enforcement in the requested State of a sentence if one were passed is likely to improve the prospects for the social rehabilitation of the person sentenced; (g) if it considers that the presence of the suspected person cannot be ensured at the hearing of proceedings in the requesting State and that his presence in person at the hearing of proceedings in the requested State can be ensured; (h) if it considers that it could not itself enforce a sentence if one were passed, even by having recourse to extradition, and that the requested State could do so;”

  233. 233.

    Article 7(1) provides, “[p]roceedings may not be taken in the requested State unless the offence in respect of which the proceedings are requested would be an offence if committed in its territory and when, under these circumstances, the offender would be liable to sanction under its own law also.” As the Explanatory Report to the Convention notes, this provision indicates the principle of double criminality in concreto (Explanatory Report to the European Convention on the Transfer of Proceedings in Criminal Matters, 1972, pp. 16–17).

  234. 234.

    See Schutte (1999), pp. 648–649. Several European states regard such derivative jurisdiction on the basis of a request for the transfer of proceedings as problematic and have not ratified the Convention for this reason. See Ludwiczak (2010), pp. 350–352.

  235. 235.

    With respect to the development of the MLA Initiative, see generally, Van den Herik (2020); Bisset (2020); Ijzerman (2016–2017).

  236. 236.

    The document is available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ICC-ASP12-GenDeba-Netherlands-Joint-ENG.pdf, Accessed 29 May 2021.

  237. 237.

    The document is available at https://www.gov.si/assets/ministrstva/MZZ/projekti/MLA-pobuda/MLA-Initiative-Draft-Convention-English.pdf, Accessed 29 May 2021.

  238. 238.

    See Ferdinandusse (2014). Mutual legal assistance that is accompanied by coercion also requires a treaty basis (Ibid).

  239. 239.

    Ibid.

  240. 240.

    Ibid.

  241. 241.

    See the Joint Statement that was presented at the Assembly of States Parties to the Rome Statute as cited above.

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    Hiromi Sato

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Sato, H. (2021). Indirect Enforcement of International Criminal Law. In: Multilayered Structures of International Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-030-83845-4_6

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