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«Imagine yourself as the leader of a nation. Three weeks ago in a foreign country, Mrs. X, a national of that country, took part in the murder of her ...»

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affiliations and affinities of the nations involved. For example, due to their underlying theories of duty and obligation, common law countries are more likely to enter into treaties than civil law countries. 1 C. Other Methods of Final Surrender Other methods or alternatives outside the traditional practice of extradition may be equally effective in accomplishing final surrender. These methods are, in essence, a form of "disguised extradition."'132 First, international kidnapping or abduction is one possible alternative to the practice of extradition. Although clearly discouraged by the United Nations, this modern day form of bounty hunting occurs when individuals from the apprehending state remove a fugitive criminal from the state of refuge through force, threat of force or fraud. 133 This practice is generally implemented by governmental agents or employees; however, as the term bounty suggests, private individuals may also offer their services to the highest bidder. In essence, abduction is a way of securing jurisdiction over fugitive criminals who were at one time within the jurisdiction of the apprehending state.

The treatment of this practice has been diverse. For example, in the United States, courts have generally followed the Roman maxim male captus bene detenum, which translates, "an illegal apprehension does not preclude jurisdiction."' 35 Certain limitations, however, are placed on this maxim. For example, in United States v. Toscanino, the Second Circuit held that the courts of the United States have no jurisdiction over an individual who is returned through abduction, viewing such abduction as a violation of international law. 1 Soon after Toscanino, the Second Circuit would soften its Draconian view in United States ex rel. Lujan v. Gengler.137 The court upheld jurisdiction, taking the position that abduction is a violation of international law only in cases where the offended state objects to the abduction. 13 Consequently, if the offended

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nation consents to the act, jurisdiction may be exercised over the individual.

In 1992, the Supreme Court spoke on this matter in United States v. Alvarez-Machain, where the Court affirmed that forcible abduction of an individual from another jurisdiction does not prohibit the courts of the United States from exercising jurisdiction. 139 Therefore, when a treaty is not invoked by the state of refuge, a court may properly exercise jurisdiction even in cases where the individual is returned through abduction.

With recent holdings such as Alvarez-Machain, the practice of international kidnapping as a means of effectuating the surrender of a fugitive criminal may become more prevalent. Countries may view this practice as a less expensive and more efficient means of rendition. Conflicts are likely to arise regarding legality of the act, as well as questions regarding respect for the sovereignty of the state of refuge.

A second alternative to the practice of extradition is deportation, which is the "compulsory ejection of an alien from the territory of the deporting state." 14 This practice differs from extradition in that the deporting state is simply expelling the alien from its territory, and not attempting to return him to the 41 jurisdiction of the state in which the offense was committed.

It is possible in certain cases to control the final destination of the alien and deport him to the jurisdiction in which the crime occurred. When this happens, de facto extradition is said to occur. 142 However, very few cases exist where deportation was overruled on the ground that the order was a disguised form of extradition in violation of international law.'" Many objections are raised to the use of this alternative.

First, since the deportee leaves the deporting state a free man, he is able to seek entry into any port en route to the intended port of final destination. As a result, the state wishing to prosecute the fugitive criminal is not guaranteed the opportunity to do so.'" Second, since deportation sometimes acts as de facto extradition, the deportee should be entitled to the same protecS. Ct. 2188 (1992).

140. SHEARER, supra note 2, at 76.

141. Id. at 76-77.

142. Id. at 84.

143. Id. at 88.

144. Id. at 87-88.

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tions involved in the practice of extradition, including the political offense exception.145 The case of Greville Wynne illustrates the potential for injustice. Here, a British subject captured in Hungary was deported to the Soviet Union for various political crimes and offenses. 4 This transfer would likely have been avoided through the application of the political offense exception had extradition proceedings been initiated. 147 In this light deportation acts as a means of circumventing basic political and religious freedoms.

In final analysis, deportation serves as a tool in cases where no extradition treaty exists with the receiving nation. Similarly, deportation helps overcome the problem of dealing with countries that require a treaty before extradition may occur. 148 A third alternative to extradition is the use of immigration controls. By tightening security at the borders and refusing to admit those suspected of having criminal records, countries create a viable alternative to the use of extradition as a means of final surrender. 149 However, this alternative is only effective if the fugitive attempts to enter the country through proper channels.50 Therefore, if the fugitive enters through secret or undercover means, strict immigration laws and administrative policing activities have little overall effect.





Recent developments within the European Community have created an open-door policy between member states. 51 With such a policy, the use of immigration controls as a form of disguised extradition will soon disappear. In rejecting these developments, various members are tightening their immigration procedures to protect against an endless wave of refugees. At the time of this writing, Britain remains the main obstacle to full implementation of this European Community policy, which coincided with the opening of the Single Market on January 1, 1993. Britain has stated, however, that a potential middle-ground may be reached through the development of a system which would permit members to quickly and efficiently expel those seeking asylum who do not appear to have legitimate claims.

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A fourth alternative to extradition is the implementation of specific legislation recognizing or enforcing the laws of the jurisdiction from which the fugitive has escaped. 153 For example, in 1891 the United States responded to a request from Belgium regarding the enforcement of a certain Belgian law upon vessels found within U.S. ports. The Secretary of State, Mr. Foster, stated, [a] fugitive from justice from Belgium who arrives at any of the ports of the United States comes within their territorial jurisdiction and has a right to claim the protection of their laws, and this Government, in the absence of legislation or treaty authorizing the recognition or enforcement of a foreign law within its territorial jurisdiction, cannot acknowledge its binding effect. 154 As stated earlier, the practice of surrendering a fugitive to a requesting nation cannot be accomplished in most common law states without the presence of a treaty, convention or legislative provision. Likewise, the excerpt above states that a similar grant of authority is required before the laws of the requesting nation will be applied within the territorial jurisdiction of the requested state.

A question immediately arises as to the comparable nature of the laws of the requesting state to those of the forum state.

What happens if they conflict? Do the provisions of the requested state supersede the laws of the requesting nation? Also, no guarantee is provided that the fugitive will not be subject to double jeopardy upon return to his homeland. 15 Underlying these quagmires is the principle that one nation does not enforce the penal laws and judgments of another nation. 1 Questions such as ' these must be answered before this method can effectively be used as an alternative to extradition.

A possible twist to this last alternative is sanctioned by writers such as Grotius, and occurs where the state of refuge punishes the subject not in accordance to the laws of the requesting state, but in accordance with the laws of the requested state. 157 Once again, however, the comparable nature of the juSee MOORE, supra note 38, at 252; see also SHEARER, supra note 2, at 20-21, 68.

154. See id. at 252 (quoting Mr. Foster, Sec. of State, to Mr. Le Ghait, Nov. 12, 1892, MS. Notes to BeIg. Leg. VII. 571) (emphasis added).

155. See SHEARER, supra note 2, at 194-97, 207-10.

156. See id. at 207-09.

157. See MOORE, supra note 38, at 245-46.

HeinOnline -- 3 Regent U. L. Rev. 64 1993

EXTRADITION

dicial systems of each government must be carefully scrutinized.

Moreover, the requesting nation may not be pleased with the severity of the punishment handed down by the courts of the requested nation.15 The last alternative to extradition practiced in modern times is the use of special conventions or legislation specifically providing for the surrender or punishment of fugitive criminals. 1 9 The most obvious example is the Nuremberg trials of Nazi war criminals. However, such an alternative is not free from attack.

Questions of jurisdiction and the existence of statehood must be dealt with when justifying its use. 16° Regardless of the stated controversy, this method has proven effective in accomplishing the underlying purposes and goals of extradition.

CHOOSING A METHOD: To USE EXTRADITION, OR NOT TO USE

IV.

EXTRADITION... IS THAT THE QUESTION?

As the discussion to this point clearly indicates, the underlying goals and purposes of extradition may be carried out through means other than the traditional practice of extradition.

The question thus becomes, "why continue to use extradition as a means of surrender when other means are readily available for accomplishing the same goals and purposes?" If the true goal of extradition is final surrender for the purpose of administering justice, then alternative means capable of meeting this goal should not be readily overlooked. Several additional factors must be carefully considered before settling on extradition as the most appropriate means of surrender in any given situation.

Additional Considerations A.

First, the ability of the detainee to effectively challenge the current system of extradition is very limited. Overall, individual rights receive little protection. Various municipal laws and conventions, such as the European Convention, provide what little protection exists. 161 In the United States, the fugitive criminal is permitted to either petition the federal courts for a writ of

158. SHEARER, supra note 2, at 21; see also M. BASSIOUNI, supra note 2, at 224, 252, 450.

159. Wise, supra note 3, at 730.

160. Id. at 730; see SHEARER, supra note 2, at 185-87.

161. M. Bassiouni, supra note 94, at 750-51.

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habeas corpus, or to seek a writ of certiorari. However, the courts have typically been unconcerned with the plight of the fugitive. 162 More importantly, the rule of non-inquiry has added to the unfairness of the proceedings. This rule embodies a handsoff approach toward any complaint filed by the detainee regarding harsh or oppressive treatment by the requesting state. 16 An example of the potential injustice of the rule of non-inquiry is illustrated by the case of John Demjanjuk, a Ukranian national convicted of being Ivan the Terrible. In 1988, the United States extradited Demjanjuk to Israel in accordance with the treaty between the two countries. Questions soon followed regarding the reliability of the witnesses used to convict Demjanjuk, thus casting doubt on the true identity of Demjanjuk as Ivan the Terrible. Throughout the proceedings the Justice Department was well aware of the evidentiary inconsistencies, but nonetheless continued to prosecute. 164 The actions by the Justice Department in the case of Demjanjuk were undoubtedly fueled in part by the political and moral uproar over the heinous nature of the accusations. Indeed, "[pirosecutions for such dubious reasons should never occur in a nation that prides itself on retaining an unbreachable wall between the dispensation of justice and political considerations.."1e Clearly this case reflects the great extent to which a nation will go to maintain friendly relations with the requesting state, often sacrificing truth and justice to preserve non-inquiry.

A second feature of extradition that must be considered is the investment of time and money required to secure final surrender of the fugitive criminal. 166 An ironic twist in the case of Demjanjuk illustrates this potential obstacle. If Israel had accepted the United State's initial efforts to deport Demjanjuk for prior falsifications on his original application for citizenship, four years of enormous legal fees and other related costs might have been avoided. 67 Although potentially risking his escape during the return trip home, the United States could nonetheless have

162. Id. at 751.

163. Id. at 752.

164. Stephen Green, Justice DepartmentMishandledExtradition,Human Events, THE NAT'L. CONSERVATIVE WEEKLY, Dec. 12, 1992, at 18; see generally Francine R. Strauss, Demjanjuk v. Petrovsky: An Analysis of Extradition, 12 MD. J. INT'L. L. & TRADE 65 (1987).

165. Green, supra note 164, at 18.

166. See SHEARER, supra note 2, at 210-11.

167. See Green, supra note 164, at 18.

HeinOnline -- 3 Regent U. L. Rev. 66 1993 EXTRADITION1993]



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