Autumn of the patriarch: the Pinochet extradition debacle and beyond--human rights clauses compared to traditional derivative protections such as double criminality.

• Author: Blakesley, Christopher L.

1. INTRODUCTION

   "Play with murder enough and it gets you one of two ways. It makes you sick, or you get to like it." Dashiell Hammett, Red Harvest 102 (1929).

   1. GENERAL

      This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This approach is based on the concept that states are the only subjects of international law. Thus, it is state's interests, rights, and obligations that are to be vindicated. If a fugitive is to be protected, it is because the state wills it so. The second approach considers the individual, at least to a degree, to be a subject of international law. It is the fugitive's interests and rights that are at issue and that human rights law protects. Thus, extradition law (treaties, custom, and domestic law) should include certain specific, basic human fights clauses or rules, through which the fugitive, if he obtains, will be exempt from extradition. These may include specific, wholesale human rights clauses in extradition treaties and domestic extradition laws. It can be argued that, even without a specific clause, established international human rights rules are incorporated by reference.

      The battle between these approaches illustrates the tension between the value of protecting individual human rights in the criminal justice arena and the need to provide effective international law enforcement. Most recently, the process that lead to the English decision not to extradite Augusto Pinochet to Spain exemplified the tension between these values.

      It is interesting to wonder about the apparent oddity that many, though not all, human rights activists, who traditionally have been quite vigorously libertarian in protecting rights of individuals facing criminal justice systems of various nations (and, presumably still are in the run-of-the-mill cases), have become pro-prosecution hawks and quite weak on the incorporation of broad human rights protections for those brought before international tribunals or otherwise prosecuted for the more heinous international crimes. Some of the reactions to the Pinochet decision are representative. I will argue that if we are seriously going to try to end impunity for crimes against humanity and war crimes, it must be done in a way that is consistent with the highest protection of human rights interests for those being prosecuted. Otherwise, the system will ultimately fall of its own weight or become a tool of repression itself. If we are not scrupulous in protecting the accused from abuses and deprivation of civil liberties and ensuring related human rights protections for the accused during extradition, investigation, and trial, we will ultimately condemn the viability of human rights and criminal justice. As Justice Jackson warned in his opening statement as Chief Prosecutor in the Nuremberg Trials:

      [B]efore I discuss the particulars of evidence, some general considerations which may affect the credit of this trial in the eyes of the world should be candidly faced. There is a dramatic disparity between the circumstances of the accusers and the accused that might discredit our work if we should falter, in even minor matters, in being fair and temperate. Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes.... [(1)] We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice.(2) The very same principles obtain in any criminal justice system, whether domestic or international. In fact, we have already seen this in relation to the War in Bosnia and Herzegovina. Article 10(2)(b) of the Statute for the Ad Hoc Tribunal for the former Yugoslavia provides that retrial may take place if the "national court proceedings were not impartial...." This language probably refers to a situation of the kind suggested by the next phrase, which speaks of the accused being "shielded from international criminal responsibility." There may be situations where the International Tribunal would be more protective of the human rights of the accused than would be a national court, which may not be "impartial" or "well-disposed." Examples are plentiful. For example two Bosnian Serbs, sentenced to death for war crimes in Bosnia and Herzegovina,(3) were convicted after confessing, although their confessions were not corroborated, were withdrawn, and the defendants claimed that they had been given under torture and repeated beatings. Scars and markings found on their bodies were consistent with the claims of torture. It is clear that Justice Jackson's warning is well-founded and is one that we should bear constantly in mind.

      I will look at these issues through the prism of international extradition law and practice. Extradition is the traditional and the legal method for one nation-state to return a fugitive to another nation-state to face prosecution or to serve his or her sentence.(4) The traditional positivist approach to extradition is still predominant on most issues. It prescribes that the state is the subject of international law and that the individual is an object to be extradited. It is the state, not the individual, that has rights and obligations.(5) Barriers to extradition, therefore, obtain for the protection of the state and as the means for the state to insist on protection for its nationals, or to insist on the limits to which the requesting state must abide, upon prosecuting the extradited fugitive. This is a matter of sovereignty. Thus, limitations on and exemptions from extradition, like the double criminality principle--the principle of speciality, ne bis in idem--or the political offense exception apply at the prerogative and benefit of the state. They are not exclusively, or even primarily, aimed at protecting the fugitive, who, under this view, generally does not even have standing to raise their violation.(6) Rather, the fugitive's right to protection is derivative. The primary purpose of limitations to and exemptions from extradition is to protect the sovereign interests of the state party or to allow the state party to maintain its sovereignty by protecting the interests of the person (object) whom they extradite.(7) For example, the political offense exception is applied to allow a state to protect its nationals, to avoid participation in the prosecution of the losers of a conflict over a cause,(8) or to protect a person from being extradited to a place where he or she will be persecuted for reasons of race, gender, ethnicity, religion, or politics.(9) Traditionally, therefore, the state, not the individual, is to raise these exemptions or limitations. The rule of non-inquiry is a classic statist rule. It is applied by courts to avoid considering the propriety of extradition, when questions about the fairness of the requesting state's justice system are raised. The requested state sees its interest in not embarrassing the requesting state as being stronger than the fugitive's interest injustice or fairness.(10)

      This means that, in sum, human rights protections in extradition practice are only incremental and casuistic at best.(11) In addition, it will be shown that virtually all of the protections afforded to an accused person who is bound over for trial, already quite minimal in the United States, have been eroded, especially in relation to extradition proceedings. This article will consider the problems relating to some of these traditional limitations and protections and will compare them to the more interesting approach that calls for adoption of express human rights protections in extradition.(12)

   2. IS THERE A NEED FOR A HUMANITARIAN EXCEPTION TO EXTRADITION?--OR WORRISOME TENDENCIES

      Whatever slight human rights protections obtain for individuals charged with crime in either the domestic or the international systems may be eroded even further by an ironic partnership of anti-crime zealots and some human rights activists. Of course, it is most important to find a way to disestablish impunity for perpetrators of all crimes, especially crimes against humanity. A major theme of this article, however, is to warn against a tendency into which we all sometimes stumble. We allow ourselves to believe that short-cuts to the processes of "finding the truth" and eliminating impunity are appropriate in the face of the more horrendous crimes committed. This tendency is quite dangerous. It risks eroding human rights, especially those related to fair investigation, prosecution, and trial. Once a standard is set low or is lowered, it tends to remain low. It is sadly interesting to me that many vigorous proponents of human rights, who, by instinct are also vigorous promoters of protections against police and prosecutorial abuses, are tempted to seek shortcuts when it comes to fighting serious international evil.(13) This phenomenon reminds me of the tendencies of true--believers in the "war on drugs," who believe that human rights in one arena are expendable for those in another. Also, some "freedom fighters" (demonized as terrorists by the other side--sometimes justifiably) equally as sincerely and zealously believe that their "war" is worth the erosion of civil liberty or human rights that it causes.(14) Finally, many who considered themselves to be...