«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 ...»
ensured a "de facto extradition" by accompanying Demjanjuk to the final location of deportation. 168 A third consideration, executive discretion, also discourages a nation's use of extradition as a means of surrender. Discussed mostly in relation to the extradition framework of the United States, this practice involves the Secretary of State's use of discretionary power to deny final surrender. 169 Despite the apparent contradiction to the rights and duties created by treaty obligations, executive discretion plays a crucial role in the United States extradition policy.17 0 Traditionally, the Secretary's role was considered purely "ministerial."' 7' In other words, the Secretary would act as a rubber stamp for the magistrate's findings below. This tradition began to change in 1871, when the Secretary refused to surrender three out of seven detainees to Great Britain. No reason was offered by the Secretary for this refusal. 172 Later, in In re Stupp, 1873, the Secretary refused to surrender the accused, a Prussian national, for charges of "arson, murder, and robbery."'13 This decision was the first judicial recognition of the executive's use of discretionary power.
In essence, the use of executive discretion means that full compliance with the letter of the treaty is no longer a guarantee to final surrender. The use of discretion appears even more suspicious in the face of language stating that extradition "shall" be required in cases where the requesting nation has fully complied with the treaty.'1 Anything less than full compliance in such cases would thus be considered a blatant violation of specific treaty obligations.
Fourth, the effect of state succession on extradition treaties is another area for consideration. 76 The central question deals with the effect that such changes will have on current treaty relations with the succeeding state. For example, what happens when the parent state refuses to recognize the official status of
168. See SHEARER, supra note 2. at 77-78.
169. See Note, supra note 77, at 1313-14.
170. See generally Note, supra note 77; M. Bassiouni, supra note 94, at 755-60.
171. Note, supra note 77, at 1315.
173. 23 Fed. Cas. 281, 282 (No. 13562) (C.C.S.D.N.Y. 1873).
174. Note, supra note 77, at 1315. In addition, legislative activity was also changing the traditional role of the Secretary, adding to the already mounting support of case law.
See, e.g., 18 U.S.C. 5 3184 (1982).
175. See generally, e.g., U.S. - Swiss Treaty, supra note 84, at 1928-34.
176. See SHEARER, supra note 2, at 45-51.
HeinOnline -- 3 Regent U. L. Rev. 67 1993 REGENT UNIVERSITY LAW REVIEW [Vol. 3:43 the succeeding state? Further, what if that state becomes part of another state which the parent state has refused to recognize?
Often, an entirely new treaty will be required before extradition will resume between the two states. The added time, expense and hassle involved in reformulation may decrease 177 parent the state's desire to continue extradition with that state.
A similar effect on treaty relations is caused by acts of war.
According to traditional theories, war terminates all existing obligations between the two countries. 17 However, states in modern times tend to "depend on the objective compatibility of the treaty with a belligerent situation" when determining whether the treaty should be terminated completely, or whether it should be kept in place despite the occurrence of hostilities. 179 In other words, an ad hoc balancing approach is adopted for each conflict.
Although the modern era no longer views the outbreak of war as immediate grounds for abrogation of extradition treaties, nothing resembling a consensus has appeared on the international scene to provide a measure of continuity. 180 The considerations of succession and war are even more critical in light of recent world developments, specifically in the Soviet Union and Yugoslavia, where revolt and succession are a part of everyday life. In an era of emerging independence, a method of extradition is required which will keep pace with rapid governmental changes. Not only must this method stay current with newly developing crimes and offenses, but it must also be flexible enough to deal with sudden, and often violent changes of power.
Moreover, a look into the not too distant past provides evidence of extradition's inability to meet current challenges.
Until 1984, crimes such as drug trafficking and computer fraud were absent from the list of offenses of many extradition treaties.181 In order to effectively continue in the administration of justice, such treaties need to be regularly updated. Meanwhile, innovative criminals will find ways to slip through the cracks in the system. The only way to avoid such mishaps is to make the first question for analysis not, "what method will best serve national interests or political necessity,?" but instead, "which
methods or means will best serve the swift and effective administration of justice?" A final consideration is the constant political pressure and tension that accompanies any decision to extradite. 8 2 An illustration of the effects that politics has on a requesting nation's decision to extradite is found in the case of Josette Bauer, a Swiss national who was extradited by the United States to Switzerland in 1981.183 Throughout Ms. Bauer's proceedings, the United States was involved in sensitive negotiations with Iran for the release of several American hostages. The United States4 i was represented by Switzerland throughout these negotiations.' The apparent need to retain friendly relations with the Swiss government was directly impacting the court's decision. Not only did the court have to carefully weigh the evidence before it, but it now had to assume the role of politician and consider the potential effect that denying extradition might have on the lives of the American hostages.
B. Proposals Despite the many problems that accompany extradition, not everyone has gone so far as to suggest its total abolition. The pages of every newspaper have at one time or another reflected the positive results that extradition provides. Nevertheless, the current system is far from perfect. Several proposals have been suggested for improving this system.
To begin, multilateral treaties are recommended as a way to solve many of the problems facing bilateral treaties. Proponents suggest that the bilateral treaty be replaced with treaties that are based on wide geographical or political affinities, consisting of several nations or states.18 5 Modern day examples of such agreements include the Arab League Extradition Agreement, The Benelux Extradition Convention, and the European Convention.'" The advantages of multi-lateral treaties are several. First, these treaties are said to "reduce... the divergence in national legislation that so perplexes national authorities when dealing
with extradition matters on a bilateral... basis."'187 For example, countries pledge to settle disagreements by reference to the existing multi-lateral agreement, agreeing not to involve any previous agreements between nations now party to the new treaty. s8 Second, such treaties seem "less susceptible to a process of attrition likely to cause a breakdown.... " since the withdrawal or removal of a single party will not necessarily dissolve the entire agreement. 8 9 Finally, one author has suggested that multilateral treaties may contribute to the creation of a common law of extradition. 190 An additional proposal typically offered elevates the institution of extradition to a "universal plane" through the creation of a single world convention on extradition. 191 Not only would such a convention or model code of extradition afford greater protection to the individual rights of the detainee, but it would also promote world public order, and prevent open and continuous abuse of the system. 92 In essence, a convention on a global scale would act as a watch-dog against the integrity of the system.
The following excerpt from the Freiburg Conference on International Extradition puts this proposal into perspective, jc]onsequently and in conformity to the contemporary trend to attribute to the individual the quality of subject of International Law, it is suitable to recognize that the individual who is the object of an extradition procedure may uphold before national and international jurisdictions the prerogatives recognized to him by the Universal Declaration of Human Rights and by international treaties.
To this effect and with a measure to foresee a general international convention it might be useful that there be recognized regional or international jurisdictions susceptible of hearing individual recourses directed against the decisions of national authorities rendered in violation of the aforementioned individual rights.
These jurisdictions could also be ceased with a procedure inspired by Habeas Corpus which would permit and give a more effective and practical remedy for the establishment of the Rule on a world-wide basis. 193
This excerpt proposes changes which could potentially bolster the current system of extradition. The injustices facing the traditional rule of non-inquiry would ostensibly be eliminated through a centralized system which carefully monitors international extradition and pays greater attention to individual rights and liberties.
On the other hand, the potential advantages of such a system are far from becoming a reality. A world convention would only shift the current political pressures facing individual nations onto a much larger centralized organization. Further, very few scholars, politicians or statesman have addressed questions relating to the management and control of a single world convention. In addition, how would enforceability of obligations be handled, or what remedies for breach would be available? Questions such as these must be answered before this proposal can receive serious attention.
The practice of extradition has been a useful, yet far from perfect instrument for effectuating the final surrender of fugitive criminals for the purpose of administering justice. The many problems which plague the system often prevent the administration of justice, and have at times subverted its underlying purposes. Further, attempts to improve the system have provided little more than token changes. Finally, the various proposals and recommendations for improvement have received little attention in international circles. Before any such plans will be taken seriously, many of the questions discussed above must be thoroughly analyzed and answered.
The many available alternatives to extradition are far from trouble-free as well. Each carries its own unique burden. Further, the effect that such decisions as Alvarez-Machain will have on the use of abduction as a means of surrender remain to be seen.
Similarly, recent developments of open and free travel between states in the European Community will all but eliminate the need for treaties of extradition. Instead, a state requesting the return of a fugitive may simply enter the place of refuge and forcibly remove the subject.
As modern states continue to seek independence and revolutions continue to reflect current unrest, the practice of extraSee M. Bassiouni, supra note 29, at 27-30.
dition may fail to maintain its place as the most common means of effectuating surrender. Circumstances may demand a departure from formalized traditions to a more practical means of surrender. Flexibility must replace rigidity if the underlying goals and purposes of extradition are to be carried out, mainly, the effectuation and administration of justice.
Nations can no longer rigidly cling to time-honored methods if the challenges and goals initially set forth by the institution of extradition are ever to be fully realized.
ROBERT HERBERT WOODS, JR.* * This author, like many before him who have tackled this subject, would like to emphasize that this article in no way intends to supplant the volumes upon volumes of treatises and other sources already written. Any compilation or collection on my part is merely intended to direct the reader to additional materials and provide a broad overview of the complex elements and issues involved in extradition.