Monday, June 9, 2008

International Law


Essentials on the law of extradition

Among the fundamental rights of a State recognized under established principles of international law, are the rights of sovereignty and independence. It is also by virtue of these inherent rights that a State is invested with authority to enforce its laws within its territorial jurisdiction. However, taking into consideration the development of the international community of nations, States seek mutual cooperation and assistance, not only in the maintenance and promotion international peace and security, but also in the enforcement of their national laws in particular cases.[1] One of the most important developments under modern international law pertaining to jurisdictional assistance is Extradition. This mechanism is a product of shared common interest among states in the maintenance of law and order in the international community, which as result, States cooperate with one another by surrendering fugitive criminals to the State in which the crime was committed. To be more precise, extradition has been defined as “ the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which being competent to try and to punish him, demands the surrender.”[2] Simply put, extradition is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. It does not apply however to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.[3] Be it noted that extradition involves a combination of diplomatic, administrative and judicial procedure whereby a fugitive from justice found in one state is surrendered to the state from which the fugitive fled. Clearly, in a world of increasing mobility of people across national borders and with the development of the means of travel and communication, the purpose of extradition is to facilitate the prosecution of suspected criminals or to insure the punishment of convicted criminals. In short, it seeks to promote criminal justice by refusing safe haven to criminal fugitives.
Since there is no existing customary international law specifically governing the conduct of extradition, it is imperative to know its basis under international law. Extradition of a person is required only if there is a treaty between the state of refuge and the state of origin. Accordingly, in the absence of such extradition treaty, the local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he is its national. If, notwithstanding this right, the surrender requested is still effected by the state of asylum, it is not because of a demandable duty on its part but in pursuance of policy or as a gesture of comity.[4] But since States are jealous of their territorial sovereignty, it is difficult to assume that States by way of comity will surrender a person found in their territorial jurisdiction to another state in the absence of a treaty between them. Thus, it is safe to assume that under international law there is no obligation to extradite unless there is an extradition treaty.

Hugo Grotius as early as 1625, recognized the social necessity and duty under the natural law, that a state either punish such fugitive criminals itself or else surrender them to the state whose laws were immediately concerned in bringing the offender to justice. Regarded as moral duty and courtesy, extradition however did not become a legal obligation until states began to enter into special treatise providing for the surrender of particular fugitives although apart from these treaty arrangements states frequently surrendered fugitives by voluntary act.[5] But States adopted no uniform rule, likewise there was no universal rule of customary international law in existence which imposes the duty of extradition. In the second half of the nineteenth century there was an urgent need of offsetting the greater facilities for the escape of criminals due to the modern methods of transportation. Extradition treaties of a more general nature, covered stipulated crimes and applicable to offenders. By the opening decade of the twentieth century up to the present time, the scope of these treaties had widened greatly. Extradition treaties are generally bilateral in character, and there was a noticeable lack of uniformity in their provisions and in their interpretation. By way of exception, the delivery of fugitive criminals in the absence of a treaty still takes place on occasion as an act of international comity but not as a legal obligation.[6] Classical commentators on international law focused their early views on the nature of the duty to surrender an extraditee, whether the duty is legal or moral in character. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. In sharp contrast, Puffendorf and Billiot led the school of thought that the so-called duty was but an imperfect obligation which would become enforceable only by a contract or agreement between states.[7] State practice in these modern times favor the view laid down by Puffendorf and Billiot that under the law of nations there is no duty to extradite in the absence of a treaty, whether bilateral or multilateral.

A. General Principles Governing Extradition
In the absence of uniform rule on extradition, States practice, as well treaty stipulations have certain common characteristics and conditions otherwise known as fundamental principles of extradition. As generally observed, the following are the recognized fundamental principles of extradition: (1) that there is no legal obligation to surrender a fugitive unless there is a treaty; (2) religious and political offenses are generally not extraditable; (3) a person extradited can be prosecuted by the requesting state only for the crime for which he is extradited and (4) unless provider for in a treaty, the crime for which a person is extradited must have been committed in the territory of the requesting State.[8]
Among these principles, the most controversial is the “ Doctrine of Political Offense,” possibly because political offenses have never been precisely defined.

B. The Doctrine of Political Offense
As stated above, political offenders are generally not subject to extradition. In order to constitute an offense of a political character the British court held that, “ there must be two or more parties in the state, each seeking to impose the government of their own choice on the other.”[9] Hence, an admitted anarchist who fled to England after bombing a Paris restaurant and a military barracks was held to be extraditable since he was considered not a political offender but an enemy of all governments.[10] The origin of this principle is traced to the time when democratic governments in the nineteenth century refused to surrender individuals who fled political or religious persecution launched by autocratic states. Nevertheless, the doctrine of political offense is well supported by the following reasons: (1) the political offender deserves humanitarian treatment. Extradition law proceeds on the premise that the protection of the lives and property of individuals produce a common interest in the repression of crimes violating them. But the element of common interest is absent in political offenses, because legal and value systems differ; (2) the political offender possesses the right to revolt against tyranny, and if this right is to be meaningful, then in case of failure he should be entitled to political asylum. The rise of totalitarianism in the twentieth century has in certain instances rendered revolt morally obligatory, and the struggle for the independence by oppressed peoples has in certain situations given rise to a justification for rebellion; (3) the principle of neutrality and non interference in the internal affairs of another state dictates that where there is a “contest” between the government and a segment of a population, the political offender should not be extradited. For if the political offender is surrendered, the asylum state thereby assists one of the parties in the struggle and becomes a partisan in the civil strife. Under the political offense doctrine, the asylum state avoids dangerous decisions on the legality and the conduct of a foreign government.[11]

C. The Principle of Specialty
Under this principle, a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition treaty. It must be stressed that, if a fugitive criminal is charged with any other offense committed before his escape, the state of refuge and not the accused has a right to object, nevertheless the prosecution will be allowed if the extraditing state agrees or does not complain. According to some writers on international law, this principle is strictly administered in actual practice, as correctly suggested there seems to be greater concern for the protection of the fugitive criminal than for the local community whose law has been violated.[12]

D. Principle of Double Criminality
This principle is a necessary consequence of extradition treaties because of different legal systems in the world. The principle of double criminality means that extradition is only available when the act is an offense in both jurisdiction. It need not have the same name, but it must be criminal in both systems.[13]

E. Attentat Clause
Under the attentat clause, the murder of the head of state or any member of his family is not to be regarded as a political offense for purposes of extradition. A notable example was the adoption of the United States of the attentat clause in its extradition treaty with Belgium after the assassination of President Garfield.

Procedure in the Philippines[14]
The applicable law on Philippine extradition procedure is Presidential Decree No. 1069 which took effect on January 13, 1977. Upon request by a foreign state through its diplomatic representatives, the the Ministry of Foreign Affairs (now DFA) shall forward the request to the Ministry of Justice, (now Secretary of Foreign Affairs) together with all documents and papers.
The Ministry of Justice in turn shall forward the request together with pertinent papers to the proper Regional Trial Court, designating an attorney to take charge of the case by filing the proper petition in court. Upon filing of the petition, the RTC will issue summons or issue a temporary warrant of arrest to compel the appearance of the accused.
A hearing will then be conducted by the Regional Trial Court, which shall provide the accused with a counsel de officio if he has no counsel. The decision granting the petition for extradition of appeals may be appealed to the Court of Appeals within ten days.
The decision shall be forwarded to the Ministry of Foreign Affairs through the Minister of Justice. The accused shall be placed at the disposal of the authorities of the requesting State or government. The costs and expenses incurred in the extradition proceedings shall be paid by the requesting State or government.
If the request is granted, the requesting State is informed of the date and place of the surrender, and of the length of time for which the person was detained. Expenses of the requested State by reason of the extradition are reimbursed by the requesting State, unless otherwise agreed. Transit through a third State is usually permitted on request, unless the offense charged is considered as a political offense and non-extraditable in that State.

[1] Coquia, International law and World Organization, 2005 edition
[2] Terlinder v. Ames, 84 U.S.270 (1902)
[3] Weston, International law and Order, 2nd ed. P.630
[4] Cruz, International law 2000 edition
[5] Coquia, Extradition As A Jurisdictional Cooperation between States, 332 SCRA 238
[6] Ibid.
[7] Dissenting Opinion, Puno, J., in Secretary of Justice v. Lantion ( January 18, 2000)
[8] Coquia, 340
[9] Cruz, citing In re Meunier, 2 Q.B. 415 (1894)
[10] Ibid.
[11] Defensor-Santiago, Identifying Political Offenses, 56 Phil. L.J. 395 (1981)
[12] Salonga and Yap, Public International Law, 1992 edition
[13] Cruz, p.204
[14] Coquia, p.344