Surrender of fugitives to the war crimes tribunals for Yugoslavia and Rwanda: Squaring international legal obligations with the U.S. constitution

Criminal Law Forum

Volumn 7, Issue 3, 1996, Pages 561-604

  Harris, Kenneth J ^a,b,c,d   Kushen, Robert ^e,f,g,h  

^a United States Department of Justice   (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

^c UNIVERSITY OF CONNECTICUT   (United States)

^d UNIVERSITY OF KIEL   (Germany)

^e OPEN SOCIETY FOUNDATIONS   (United States)

^f U S DEPARTMENT OF STATE   (United States)

^g HARVARD COLLEGE   (United States)

^h Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

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EID: 53249133689     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/BF02197819     Document Type: Review

References (369)

1. Gaedig Bonabesse, FBI Arrests Genocide Suspect: Rwandan Living in San Antonio Sought by U.N. Tribunal, Washington Times, Sept. 28, 1996, at A6, available in LEXIS, News Library, US File;
2. David McLemore, Rwandan War Crimes Suspect to Remain Jailed in Laredo, Dallas Morning News, Oct. 12, 1996, at 25A, available in LEXIS, News Library, US File (defense counsel challenging sufficiency of Tribunal documents submitted in support of arrest).
3. The International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States was created November 8, 1994. S.C. Res. 955, U.N. SCOR, 49th Year, 1994 S.C. Res. & Dec. at 15, U.N. Doc. S/INF/50 (1994).
4. The Rwanda Tribunal's Statute is published as an annex to this resolution. 1994 S.C. Res. & Dec., supra, at 15,
5. reprinted in Appendix D, 5 Crim. L.F. 695, 701 (1994).
6. An analysis of the Rwanda Tribunal Statute can be found in Report of the Secretary-General pursuant to Paragraph 5 of Security Council Resolution 955 (1994), U.N. Doc. S/1995/134 (1995).
7. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 was created May 25, 1993. S.C. Res. 827, U.N. SCOR, 48th Year, 1993
8. S.C. Res. & Dec. at 29, U.N. Doc. S/INF/49 (1993).
9. The Yugoslavia Tribunal's Statute is published as an annex to Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993),
10. reprinted in Appendix B, 5 Crim. L.F. 597, 636 (1994) [hereinafter Secretary-General's Report].
11. Theodor Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122, 133.
12. The obligation is embodied in Yugoslavia Tribunal Statute, supra note 2, art. 29;
13. Rwanda Tribunal Statute, supra note 1, art. 28.
14. Rules of Procedure and Evidence of the Tribunals, R. 2(A), U.N. Doc. IT/32/Rev.7 (1996) (Yugo.);
15. U.N. Doc. ITR/3/Rev.1 (1995) (Rwanda), available at www.igc.apc.org/ tribunal/, defines an "accused" as a "person against whom an indictment has been submitted in accordance widi Rule 47," and "accused" will be so used in this essay. The rules were adopted by the Tribunals pursuant to Security Council authorization.
16. Yugoslavia Tribunal Statute, supra, art. 15;
17. Rwanda Tribunal Statute, supra, art.
18. Since the Security Council's disastrous experience in authorizing UNOSOM forces to make arrests in Somalia, S.C. Res. 837, U.N. SCOR, 48th Year, 1993
19. S.C. Res. & Dec. at 83, U.N. Doc. S/INF/49 (1993), the Council has been reluctant to involve UN peacekeepers in such a law enforcement role. However, the Council has recognized that the NATO peacekeeping force in Bosnia, IFOR (now known as SFOR), has been authorized by the parties to the conflict to ensure compliance with Annex 1A of the peace agreement.
20. S.C. Res. 1031, U.N. SCOR, 50th Year, 3607th mtg., U.N. Doc. S/RES/1031 (1995). Annex 1A includes an obligation to arrest and surrender Tribunal fugitives. General Framework Agreement for Peace in Bosnia and Herzegovina, Nov. 21, 1995, Annex 1A, art. IX(g), available at www.sta.te.gov/www/current/bosnia/ .
21. NATO announced that IFOR would detain indicted war criminals who come into contact with IFOR in the execution of its assigned tasks in order to assure the transfer of these persons to the international criminal tribunal. Evelyn Leopold, UN Council Readies Resolution on New Bosnia Force, Reurer EC Rep., Dec. 15, 1995, available in LEXIS, News Library, Reuec File.
22. Agreement on Surrender of Persons, U.S.-Yugoslavia Tribunal, Oct. 5, 1994 (entered into force Feb. 14, 1996) (on file with the authors) [hereinafter Yugoslavia Agreement];
23. Agreement on Surrender of Persons, U.S.-Rwanda Tribunal, Jan. 24, 1995 (entered into force Feb. 14, 1996) (on file with the authors) [hereinafter Rwanda Agreement].
24. National Defense Authorization Act, Pub. L. No. 104-106, § 1342, 110 Stat. 186, 486 (1996).
25. See infra note 17.
26. Louis Henkin, Foreign Affairs and the Constitution 137 (1972) ("treaties are subject to constitutional limitations that apply to all exercises of federal power"). Nor does the Constitution forbid the President or Congress to violate international law.
27. Id. at 221-22.
28. However, superseding domestic law does not relieve the United States of its international obligations. Restatement (Third) of the Foreign Relations Law of the United States § 115(1)(b) (1987) [hereinafter Restatement].
29. UN Charter art. 39.
30. Analyzed in Prosecutor v. Tadic, Case No. IT-94-1-AR72, curve stem paragraph sign curve stem paragraph sign 28-40 (Yugoslavia Tribunal, App. Chamber, Oct. 2, 1995),
31. reprinted in 7 Crim. L.F. 51 (1996) (upholding lawfulness of establishment of Tribunal by Security Council under UN Charter ch. VII) [hereinafter Tadic App. Dec.].
32. Although the General Assembly has not permitted the Federal Republic of Yugoslavia ("FRY") to participate in UN organs, G.A. Res. 47/1,
33. U.N. GAOR, 47th Sess., Supp. No. 49, vol. I, at 12,
34. U.N. Doc. A/47/49/vol.I (1992), the FRY is regarded as having undertaken the obligations of a UN member state according to customary international law rules on state succession. Support for this view comes from numerous Security Council and General Assembly resolutions directed at the FRY since the dissolution of the former Yugoslavia.
35. Further support comes from Letter from Carl-August Fleischhauer, UN Under-Secretary-General for Legal Affairs and Legal Counsel, to Kenneth Dadzie, Under-Secretary-General, UN Conference on Trade and Development (Sept. 29, 1992) (noting that G.A. Res. 47/1, supra, "neither terminates nor suspends Yugoslavia's membership in the Organization") (on file with the authors). The definition of "state" in Tribunal R. 2(A), supra note 3, is also instructive: "A State Member or non-Member of the United Nations or a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not." This definition makes clear that obligations under the relevant Security Council resolutions extend to the FRY and other internationally recognized states in the region of the former Yugoslavia, as well as to non-state entities like the Republika Srpska.
36. Secretary-General's Report, supra note 2, curve stem paragraph sign curve stem paragraph sign 125-126.
37. For a discussion of the legitimacy of the use of Security Council authority in this way, see Tadic App. Dec., supra note 9, curve stem paragraph sign curve stem paragraph sign 28-40;
38. James C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 Am. J. Int'l L. 639 (1993).
39. Yugoslavia Tribunal Statute, supra note 2;
40. Rwanda Tribunal Statute, supra note 1.
41. In the case of Bosnian Serb General Djordje Djukic and Colonel Aleksa Krsmanovic, the prosecutor requested and obtained surrender before indictment, but this was not pursuant to a formal Tribunal arrest warrant. Interview with John Heffernan, Chief Operating Officer, Coalition for International Justice, Washington, D.C. (Dec. 3, 1996).
42. Yugoslavia Tribunal Statute, supra note 2, art. 29;
43. Rwanda Tribunal Sratute, supra note 1, art. 28.
44. U.N. SCOR, 48th Year, 3217th mtg. at 15, U.N. Doc. S/PV.3217 (1993) [hereinafter Yugoslavia Tribunal Debate].
45. Id. at 19. According to Spain, "[I]t is indispensable to impose upon States an obligation to cooperate with the Tribunal that is based upon Chapter VII of the Charter. That obligation implies the duty to promulgate any domestic legal measures that may be necessary."
46. Id. at 40-41. Japan "intend[ed] to cooperate in its implementation to the best of its ability, in accordance with the spirit of internationally established principles on criminal matters and within our Constitution."
47. Id. at 24-25. Brazil "[wa]s determined, should the need arise, to cooperate fully with the International Tribunal in strict accordance with the relevant Brazilian legislation, which includes the observance of the constitutional competence of the Brazilian Supreme Court to process and judge requests for extradition."
48. Id. at 37. France noted that "all States are required to cooperate fully with the Tribunal, even if this obliges them to amend certain provisions of their domestic law."
49. Id. at 12.
50. International War Crimes Tribunals Act, 1995, No. 18 of 1995 (assented to Mar. 29, 1995) (Austl.), available at www.austlii.edu.au/au/legis/cth/ consol_act/;
51. Decree with Force of Law on Deferral upon Request by the International Tribunal, Official Gazette of the Republic of Bosnia and Herzegovina, No. 12, at 317 (Apr. 10, 1995);
52. Act on the Jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia and on Legal Assistance to the International Tribunal, Jan. 5, 1994, translated in Council of Europe, European Comm. on Crime Problems, Information Note, CDPC/Exch.Inf.Int.Trib. [hereinafter CDPC-Trib.], June 14, 1994 (Fin.);
53. Loi no. 95-1 du 2 Janvier 1995 portant adaptation de la législation française aux dispositions de la resolution 827 du Conseil de sécurité des Nations unies instituant un tribunal international en vue de juger les personnes presumdes responsables de violations graves du droit international humanitaire commises sur le territoire de l'ex-Yougoslavie depuis 1991, J.O. 71 (Jan. 3, 1995) (Fr.);
54. Loi no. 96-432 du 22 mai 1996 portant adaptation de la législation française aux dispositions de la résolution 955 du Conseil de sécurité des Nations unies instituant un tribunal international en vue de juger les personnes presumées responsables d'actes de génocide ou d'autres violations graves du droit international humanitaire commis en 1994 sur le territoire du Rwanda et, s'agissant des citoyens rwandais, sur le territoire d'Etats voisins, J.O. 7695 (May 23, 1996) (Fr.);
55. Law Regulating Cooperation with the International Tribunal for the Former Yugoslavia, Official Gazette, Apr. 13, 1995 (Ger.) (on file with the audiors);
56. Provisions on Co-operation with the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, Decree-Law No. 544, Dec. 28, 1993, translated in CDPC-Trib., Mar. 21, 1994 (Italy);
57. Provisions Relating to the Establishment of an International Tribunal for Trial of Crimes Committed in Former Yugoslavia since 1991, Mar. 9, 1994 (Neth.);
58. International War Crimes Tribunals Act, 1995, No. 27 (N.Z.), to be available at www.knowledge-basket.co.nz;
59. Bill Relating to the Incorporation into Norwegian Law of the U.N. Security Council Resolution on the Establishment of an International Tribunal for Crimes Committed in the Former Yugoslavia, translated in CDPC-Trib., May 19, 1994;
60. Organization Act 15/1994 of 1 June on Cooperation with the International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, translated in U.N. Doc. A/49/278 (1994) (Spain);
61. Act Relating to the Establishment of an International Tribunal for Trial of Crimes Committed in Former Yugoslavia, translated in CDPC-Trib., June 17, 1994 (Swed.).
62. But see Guidelines for National Implementing Legislation art. 5(6), U.N. Doc. S/RES/827/Annex 3 (1993) (sample legislation prepared by Tribunal Registry providing that a national court, "after verifying that the requisite formal conditions are fulfilled, shall approve the transfer of an arrested accused... without resort to extradition proceedings").
63. See generally Amnesty International, International Criminal Tribunals (1996).
64. Germany Approves Extradition of Bosnian Serb for War Crimes, Agence France Presse, Mar. 31, 1995, available in LEXIS, World Library, Allnws File.
65. For the German legislation, see supra note 17.
66. The rules of the Rwanda and Yugoslavia Tribunals, supra note 3, largely coincide and where the text is the same, only one rule will be cited.
67. E.g., Code of Criminal Procedure, Procedure for Extradition of Convicted or Accused Persons art. 514 (Croatia) (on file widi the authors) [hereinafter Croatian Extradition Procedure];
68. Extradition Act, 1989, §9 (U.K.).
69. See Secretary-General's Report, supra note 2, curve stem paragraph sign 97 (contemplating that orders or warrants for arrest, detention, surrender, or transfer would issue after confirmation of indictment containing concise statement of facts).
70. Such prohibitions exist, e.g., in Fed. Rep. Yugo. Const, art. 17, translated in Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., Supp. 1994);
71. Extradition Act of Mar. 9, 1967, Stb. 139 (as amended by Act of Sept. 10, 1986, Stb. 464;
72. Act of Mar. 12, 1987, Stb. 98, § 4) (Neth.)
73. [hereinafter Neth. Extradition Law]. Ger. Const. art. 16(2), translated in Constitutions of the Countries of the World supra, also prohibits extradition of nationals, but the German implementing legislation, supra note 17, does not appear to address the issue. It is unclear whether a German court would interpret the Constitution to prohibit surrender to the Tribunals or only extradition to another state. If the prohibition applied to surrender, Germany could try to forestall a Tribunal request for surrender of a German national by undertaking a diligent prosecution of the person with Tribunal consent.
74. See Yugoslavia Tribunal Statute, supra note 2, art. 9.
75. According to Madeleine K. Albright, speaking for the United States, "[E]very Government, including each one in the former Yugoslavia, will be obligated to hand over diose indicted by the Tribunal." Yugoslavia Tribunal Debate, supra note 15, at 13. In addition, the General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 3, obligates the parties to surrender indicted persons. The Bosnian Serbs, however, have raised the nationality exception to extradition to justify their refusal to cooperate with the Yugoslavia Tribunal.
76. Jovan Kovacic, U.S. Envoy Warns Serb President to Aid Tribunal, Boston Globe, Nov. 8, 1996, at A2.
77. E.g., Croatian Extradition Procedure, supra note 20, art. 520(2);
78. Treaty for the Mutual Extradition of Fugitives from Justice, Oct. 25, 1901, U.S.-Servia, art. VI, T.S. No. 406 [hereinafter U.S.-Servia Treaty];
79. Neth. Extradition Law, supra note 22, § 11.
80. Extradition, in 6 Marjorie M. Whiteman, Digest of International Law § 15 (1968) [hereinafter Extradition].
81. Harvard Draft Convention on Extradition art. 6, 29 Am. J. Int'l L. (Supp.) 22 (1933).
82. Tadic App. Dec, supra note 9, curve stem paragraph sign 57; cf.
83. In re Extradition of Artukovic, 628 F. Supp. 1370, 1376 (C.D. Cal. 1986) ("ridding a country of some of its population for such reprehensible reasons [as racial or religious hatred], as part of some larger political scheme, is not a crime of a 'political character' and is thus not covered by the political offense exception to extradition"). The status of the accused as a political or military official is likewise no bar to prosecution.
84. Yugoslavia Tribunal Statute, supra note 2, art. 7(2);
85. Rwanda Tribunal Statute, supra note 1, an. 6(2) ("official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment"). The Artukovic litigation, like several other proceedings cited in this article, is very prolonged and complex and only the relevant decision will be cited, without subsequent history, unless relevant to the point for which the case is being cited.
86. Eg., Treaty of Extradition, Jun. 24, 1980, U.S.-Neth., art. 5, T.I.AS. No. 10733 [hereinafter U.S.-Neth. Treaty];
87. Nerh. Extradition Law, supra note 22, § 9;
88. Extradition Treaty, Mar. 3, 1978, U.S.-Japan, art. IV(2), 31 U.S.T. 892.
89. Yugoslavia Tribunal Statute, supra note 2, art. 10;
90. Rwanda Tribunal Statute, supra note 1, art. 9. The former provision is based on a presumption that prosecution for an ordinary crime might not be as diligent and penalties not as severe as for a violation of international humanitarian law. In addition, the elements of an ordinary crime necessarily would differ from those of the international law violation, rendering a non bis in idem exclusion inapplicable. The latter provision is intended to prevent a national court from insulating war criminals from punishment by carrying out a bad faith prosecution resulting in an acquittal or a lenient sentence.
91. Secretary-General's Report, supra note 2, curve stem paragraph sign 66; Tribunal R. 9, supra note 3.
92. Many bilateral extradition treaties allow the requested state to refuse an extradition request if the prosecution is time-barred in the requesting state, U.S.-Servia Treaty, supra note 24, art. VII;
93. U.S.-Neth. Treaty, supra note 28, art. 6, or in the requested state, Convention on Extradition, Dec. 10, 1962, U.S.-Isr., art. VI(3), 14 U.S.T. 1707.
94. Adopted Nov. 26, 1968, 754 U.N.T.S. 73 (entered into force Nov. 11, 1970).
95. E.g., Croatian Extradition Procedure, supra note 20, art. 512(1)(3).
96. Tadic App. Dec., supra note 9, curve stem paragraph sign curve stem paragraph sign 57, 62;
97. Demjanjuk v. Petrovsky, 776 F.2d 571, 582-83 (1985),
98. vacated on other grounds, 10 F.3d 338 (6th Cir. 1993), cert. denied sub nom.
99. Rison v. Demjanjuk, 115 S. Ct. 295 (1994);
100. Restatement, supra note 7, § 404 & note 1 (1989).
101. See infra notes 109-138 and accompanying text.
102. Even with offenses proscribed by international agreement or offenses for which universal jurisdiction is a customary norm, the United States generally has enacted criminal laws requiring some nexus to the United States as a jurisdictional prerequisite, as well as other conditions. For example, the Uniform Code of Military Justice creates jurisdiction for, and governs the prosecution by, court-martials only of U.S. military and related personnel for war crimes. 10 U.S.C. §§ 802, 818 (1994).
103. Persons other than U.S. military and related personnel may be tried for war crimes by military commissions of other forms of military tribunal but only in very limited circumstances. 10 U.S.C. § 821 (1994).
104. See infra note 83.
105. Other laws authorize civilian courts to prosecute such offenses in limited circumstances. E.g., War Crimes Act of 1996, Pub. L. No. 104-192, § 2401(b), 110 Stat. 2104 (1996) (statute proscribing grave breaches of Geneva Conventions applicable only where defendant is member of U.S. armed forces or U.S. national);
106. 18 U.S.C. §§ 1119, 2332 (1994) (terrorist murder statute applicable only to murder of U.S. citizens overseas and only on certification by Attorney-General as to terrorist intent);
107. 18 U.S.C. § 1091(d) (1994) (criminal genocide statute applicable extraterritorially only to Americans who commit genocide). The most expansive of these criminal laws allow prosecution on the sole basis that the offender is present in the United States.
108. 18 U.S.C. § 2340A (1994) (torture statute applicable to any alleged offender "present in the United States, irrespective of the nationality of the victim or alleged offender");
109. 18 U.S.C. §1203 (1994) (hostage taking statute applicable if the offender is "found in the United States");
110. see also United States v. Georgescu, 723 F. Supp. 912 (E.D.N.Y. 1989) (statute implementing Tokyo hijacking convention creates jurisdiction to prosecute foteign national for sexual abuse of another foreign national on foreign airplane in international airspace, when plane subsequently landed in United States and hence accused was "found in the United States").
111. E.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 582-83 (6th Cir. 1985) (analogizing Israeli offenses of "crimes against the Jewish people," "crimes against humanity," and "war crimes" to common crime of murder in order to meet dual criminality requirements of U.S.-Israel extradition convention);
112. In re Extradition of Artukovic, 628 F. Supp. 1370, 1377 (C.D. Cal. 1986) (analogizing "war crimes" and "genocide" to common crime of murder in order to meet dual criminality requirements of U.S.-Servia extradition treaty).
113. United States ex rel. Karadzole v. Artukovic, 170 F. Supp. 383, 393 (C.D. Cal. 1959) (finding offenses for which accused was sought to be political and not extraditable under U.S.-Servia extradition treaty; Artukovic was not extradited for another 27 years);
114. Quinn v. Robinson, 783 F.2d 776, 803-04 (9th Cir.), cert. denied 479 U.S. 882 (1986) (plurality would bestow benefit of political offense exception in some circumstances). But see cases rejecting political offense claims infra note 78.
115. E.g., In re Extradition of Demjanjuk, 612 F. Supp. 544, 560-61 (N.D. Ohio 1985) (applying time-bar provisions of U.S.-Israel extradition convention to deny extradition as to certain offenses charged).
116. The Yugoslavia Tribunal is situated in the Hague, Yugoslavia Tribunal Statute, supra note 2, art. 31,
117. and the United States has an extradition treaty with the Netherlands, U.S.-Neth. Treaty, supra note 28.
118. The Rwanda Tribunal trial chambers are situated in Arusha, Tanzania, S.C. Res. 977, 50th Year, 3502d mtg., U.N. Doc. S/RES/977 (1995),
119. but the United States does not have an extradition treaty with Tanzania (or Rwanda, where the court may also hold trials, S.C. Res. 955, supra note 1, curve stem paragraph sign 6).
120. The Rwanda Tribunal appeals chamber is shared with the Yugoslavia Tribunal in the Hague. Rwanda Tribunal Statute, supra note 1, art. 12(2).
121. U.S.-Neth. Treaty, supra note 28, art. 2(3).
122. UN Charter, June 26, 1945, T.S. No. 993 (entered into force Oct. 24, 1945); implemented by 22 U.S.C. §§ 287-287e (1946).
123. Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951),
124. S. Exec. Rep. No. 50, 98th Cong., 2d Sess. (1984),
125. S. Exec Rep. No. 2, 99th Cong., 1st Sess. (1985) (entered into force for U.S. with reservations and understandings Feb. 23, 1989) [hereinafter Genocide Convention];
126. implemented by 18 U.S.C. §§ 1091-1093 (1988).
127. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted Dec. 10, 1984,
128. G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) (as modified in 24 I.L.M. 535) (entered into force June 26, 1987),
129. S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1985) (entered into force for U.S. Nov. 20, 1994) [hereinafter Torture Convention];
130. implemented by 18 U.S.C. § 113C (1994).
131. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted Aug. 12, 1949, 75 U.N.T.S. 31, 6 U.S.T. 3114 [hereinafter Geneva Convention I];
132. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, adopted Aug. 12, 1949, 75 U.N.T.S. 85, 6 U.S.T. 3217 [hereinafter Geneva Convention II];
133. Geneva Convention Relative to the Treatment of Prisoners of War, adopted Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3317 [hereinafter Geneva Convention III];
134. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 [hereinafter Geneva Convention IV] (all entered into force Oct. 21, 1950);
135. implemented by War Crimes Act of 1996, supra note 35.
136. Quoted in Senate Comm. on Foreign Relations, International Convention on the Prevention and Punishment of the Crime of Genocide: Report together with Additional Views, S. Exec. Rep. No. 50, 98th Cong., 2d Sess. 14 (1984) [hereinafter Genocide Report 1984]. The argument against relying on multilateral conventions to authorize extradition in the absence of a separate bilateral extradition treaty has been made most often in the terrorism context.
137. E.g., Message from the President of the United States Transmitting the Convention for the Suppression of Unlawful Seizure of Aircraft, S. Exec. Doc. A, 92d Cong., 1st Sess. 6 (1971) (using this convention as basis for extradition from United States "would require a change in the existing law of extradition");
138. Senate Comm. on Foreign Relations, Aircraft Sabotage Convention, S. Exec. Rep. No. 34, 92d Cong., 2d Sess. 14 (1972) (citing State Department Deputy Legal Adviser opinion that 1971 Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation could not be used as basis for extradition in "those countries, like the United States, which by law cannot extradite except pursuant to [bilateral extradition] treaty").
139. E.g., Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936). In fact, the United States is a party to one multilateral extradition treaty, but does not rely on it in large part because all other states parties are also parties to bilateral extradition treaties with the United States. Convention on Extradition between the United States of America and Other American Republics, Dec. 26, 1933, art. 21, 49 Stat. 3111 (1933), T.S. No. 882 (confining use of convention to countries where no bilatetal treaty is in force).
140. Agreement on Extradition, Mutual Assistance in Law Enforcement Matters, and Penal Sanctions Concluded pursuant to Section 175 of the Compact of Free Association Act of 1985, Oct. 10, 1986, U.S.-Marshall Is. & Fed. States of Micronesia, T.I.A.S. No. 11661 [hereinafter Marshall Is. Extradition Framework]. As of this writing, two fugitives have been extradited from the United States under this framework.
141. E.g., Sayne v. Shipley, 418 F.2d 679, 684-86 (5th Cir. 1969) (failure of U.S. law governing extradition from Canal Zone to Panama to specify judicial hearing or appellate review is untroubling, since quasi-judicial hearing and habeas corpus review typically were afforded). In the absence of other procedures, the United States likely would apply provisions contained in chapter 209.
142. At least one commentator has suggested that, under the Constitution, the President "could plausibly claim... the authority to carry out... mandatory resolutions of the Security Council." Louis Henkin, Congress, the President, and the United Nations, 3 Pace Y.B. Int'l L. 1, 20 (1991). Under this argument, surrender to the Tribunals could be accomplished by purely executive action.
143. Genocide Convention, supra note 42, art. VI.
144. Genocide Report 1984, supra note 45, at 14.
145. Senate Comm. on Foreign Relations, International Convention on the Prevention and Punishment of the Crime of Genocide: Report together with Additional and Supplemental Views, S. Exec. Rep. No. 2, 99th Cong., 1st Sess. 25 (1985) [hereinafter Genocide Report 1985]. In the case of these Tribunals, Senate passage of the National Defense Authorization Act, supra note 5, satisfies the Senate's desire for a significant role in the process.
146. Yugoslavia Tribunal Statute, supra note 2, art. 4;
147. Rwanda Tribunal Statute, supra note 1, art. 2.
148. Geneva Convention I, supra note 44, art. 49;
149. Geneva Convention II, supra note 44, art. 50;
150. Geneva Convention III, supra note 44, art. 129;
151. Geneva Convention IV, supra note 44, art. 146.
152. Torture Convention, supra note 43.
153. Senate Comm. on Foreign Relations, Report on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, S. Rep. No. 30, 101st Cong., 2d Sess. 22 (1990) [hereinafter Torture Report] ("Under U.S. law, a treaty is required for extradition from the United States. However, relevant U.S. Supreme Court decisions indicate that Article 8 alone would not provide a sufficient treaty basis for extradition.");
154. Convention against Torture: Hearings before the Senate Committee on Foreign Relations, S. Hrg. No. 718, 101st Cong., 2d Sess. 37 (1990) (statement of U.S. Department of Justice official that in order to extradite from United States for torture, "the United States obviously would have to determine that there was an applicable extradition treaty").
155. Rwanda Tribunal Statute, supra note 1, art. 3(f) (torture as crime against humanity);
156. id art. 4(a) (torture as offense under Geneva Conventions and Additional Protocol II);
157. Yugoslavia Tribunal Statute, supra note 2, art. 5(f) (torture as crime against humanity);
158. id. art. 2(b) (torture as grave breach of Geneva Conventions).
159. International Convention against the Taking of Hostages, adopted Dec. 17, 1979, 1316 U.N.T.S. 205 (entered into force June 3, 1983), T.I.A.S. No. 11081 (entered into force for U.S. Jan. 4, 1985).
160. Committee of U.S. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 937-38 (D.C. Cir. 1988) (UN Charter art. 94 not self-executing);
161. Speiss v. C. Itoh & Co. (America), 643 F.2d 353, 362-63 (5th Cir. 1981) (UN Charter art. 55 not self-executing);
162. Sei Fujii v. California, 217 P.2d 481 (Cal. App. 1950), reh'g denied, 218 P.2d 595 (Cal. Dist. Ct. App. 1950), rev'd in part, aff'd in part, 242 P.2d 617 (Cal. 1952) (human rights provisions of UN Charter not self-executing);
163. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied 470 U.S. 1003 (1985) (Geneva Conventions, including grave breach provisions, not self-executing);
164. Senate Comm. on Foreign Relations, Geneva Conventions for the Protection of War Victims: Report on Executives D, E, F, and G, S. Exec. Rep. No. 9, 84th Cong., 1st Sess. 27 (1955) (grave breaches provisions of all four conventions not self-executing);
165. Genocide Report 1985, supra note 52, at 26 (Genocide Convention not self-executing);
166. Torture Report, supra note 56, at 37 (Torture Convention not self-executing).
167. See supra notes 41-44.
168. Yugoslavia Agreement, supra note 4.
169. Rwanda Agreement, supra note 4.
170. This last requirement enables the executive branch to confirm that the offense charged is within the competence of the Tribunal. In the bilateral extradition context, U.S. courts ordinarily grant considerable deference both to the executive branch's determination that extradition should be granted, Factor v. Laubenheimer, 290 U.S. 276, 295 (1933), and to a foreign sovereign's determination that its laws have been violated,
171. Grin v. Shine, 187 U.S. 181, 192 (1902);
172. Peroffv. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062 (1977);
173. Polo v. Horgan, 828 F. Supp. 961, 963 (S.D. Fla. 1993). In relation to surrender to the Tribunals, this deference should be the maximum that is constitutionally permitted. A U.S. court probably should not be permitted to review a Tribunal's determination that the alleged conduct falls within a particular provision of its Statute. A denial of surrender on such a ground would violate an obligation of the United States under international law and would have major foreign policy ramifications.
174. E.g., Treaty of Extradition, Mar. 28, 1995, U.S.-Jordan, art. 8, KAV No. 4209 (entered into force May 1, 1995) [hereinafter U.S.-Jordan Treaty];
175. Treaty of Extradition, Oct. 13, 1983, U.S.-Italy, art. X, 35 U.S.T. 3023 (entered into force Sept. 24, 1984) [hereinafter U.S.-Italy Treaty]. In the bilateral extradition context, the judicial branch makes a determination on only the following issues: (1) whether under 18 U.S.C. § 3184 the judge or magistrate has jurisdiction to conduct the extradition hearing, and proper jurisdiction over the fugitive; (2) whether the fugitive is being sought for offenses for which the applicable treaty permits extradition; and (3) whether there is sufficient evidence to establish that the individual appearing in court is the fugitive sought, and committed the offense charged.
176. Bingham v. Bradley, 241 U.S. 511, 516-17 (1916); McNamara v. Henkel, 226 U.S. 520, 523 (1913);
177. Ornelas v. Ruiz, 161 U.S. 502, 50839 (1896).
178. See infra notes 122-127 and accompanying text.
179. Yugoslavia Tribunal Statute, supra note 2, art. 18(4);
180. Rwanda Tribunal Statute, supra note 1, art. 17(4). Prima facie evidence is evidence that, if uncontradicted, would sustain a conviction. Probable cause is "a reasonable ground for belief of guilt" but it is less than evidence that would justify conviction.
181. Brinegar v. United States, 338 U.S. 160, 175 (1949).
182. Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 1990);
183. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
184. 68 Yugoslavia Tribunal Statute, supra note 2, art. 29;
185. Rwanda Tribunal Statute, supra note 1, art. 28.
186. E.g., U.S.-Jordan Treaty, supra note 64, art. 19;
187. U.S.-Italy Treaty, supra note 64, art. XX;
188. U.S.-Neth. Treaty, supra note 28, art. 9.
189. See supra notes 22-34 and accompanying text.
190. Unlike many civil law countries, the United States does not view nationality as a bar to extradition unless the applicable treaty provides otherwise. Charleton v. Kelly, 229 U.S. 447 (1913);
191. Quinn v. Robinson, 783 F.2d 776, (9th Cir.), cert. denied 479 U.S. 882 (1986);
192. Escobedo v. United States, 623 F.2d 1098, 1104-07 (5th Cir. 1980), cert. denied, 449 U.S. 1036 (1980);
193. cf. Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936) (extradition of U.S. nationals held precluded due to language of applicable treaty provision). Moreover, the passage of 18 U.S.C. § 3196 (1994) makes it clear that the extradition of U.S. nationals is permitted, even if the applicable treaty contains the kind of language that gave rise to the Valentine decision. In any event, Yugoslavia Agreement, supra note 4, art. 1, curve stem paragraph sign 1, and Rwanda Agreement, supra note 4, art. 1, curve stem paragraph sign 1, explicitly rule out any defense challenge to surrender based on the fugitive's citizenship.
194. For example, any claim by a fugitive that the Tribunals themselves are somehow illegitimate and have no authority to try the accused would not be an issue over which the judiciary could make a determination, since it is not one of the considerations set forth in the agreements. See In re Gonzalez, 217 F. Supp. 717, 722 n.15 (S.D.N.Y. 1963) (extradition court has no authority to inquire into matters other than facial validity of extradition documents);
195. cf. Eain v. Wilkes, 641 F.2d 504, 515 (7th Cir.), cert. denied 454 U.S. 894 (1981) (extradition statute requires only that court determine whether "alleged crime is listed in the applicable treaty, and that the provision relating to political offenses does or does not apply").
196. A determination by a U.S. court of this issue would also be an inappropriate intrusion on the foreign policy role of the executive branch. See infra note 73.
197. The Yugoslavia Tribunal itself has considered and rejected defense arguments concerning its legitimacy. Tadic App. Dec., supra note 9, curve stem paragraph sign curve stem paragraph sign 9-48.
198. E.g., Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (U.S. courts bound by treaty to presume accused will receive fair trial);
199. Bingham v. Bradley, 241 U.S. 511, 514-15 (1916) (U.S. courts will not presume requesting state will try or punish for offense other than that for which extradition was requested);
200. In re Locatelli, 468 F. Supp. 568, 574 (S.D.N.Y. 1979) (alleged political motives behind extradition request will not be examined by U.S. court).
201. See generally Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-inquiry in International Extradition Proceedings, 76 Cornell L. Rev. 1198 (1991). The courts routinely have declined to consider such matters, in order to avoid adversely affecting the executive's conduct of foreign policy, and have relied instead on the executive to deny extradition or otherwise to ensure the protection of the fugitive's rights.
202. E.g., Ahmad v. Wigen, 910 F. 2d 1063, 1067 (2d Cir. 1990) (claim that foreign justice system did not comport with U.S. due process is for executive, not judicial review);
203. Sindona v. Grant, 619 F.2d 167, 174 n.10 (2d Cir. 1980), cert. denied 451 U.S. 912 (1981) (executive can send representative to trial in foreign jurisdiction to ensure fairness). Issues outside the scope of the applicable treaty may be addressed to the Secretary of State, who has discretion under domestic law to deny extradition even after a U.S. court has certified the accused as extraditable, and even if such denial would be a violation of a U.S. obligation under international law.
204. E.g., Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied 364 U.S. 851 (1960) (dual criminality not applicable unless expressly provided for in applicable treaty);
205. Merino v. U.S. Marshal, 326 F.2d 5 (9th Cir. 1963), cert. denied, 377 U.S. 997 (1964) (statute of limitations not applicable where not mentioned in applicable treaty);
206. accord Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977);
207. see also United States v. Alvarez-Machain, 504 U.S. 655 (1992) (forms of rendition other than extradition not ruled out where extradition treaty contained no provision explicitly making extradition sole means of rendition).
208. But see Collins v. Loisel, 259 U.S. 309, 311 (1922) (implying that dual criminality required even if not specifically provided in applicable treaty);
209. accord Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985);
210. see also United States v. Rauscher, 119 U.S. 407 (1886) (extradition treaty between United States and Great Britain subject to rule of specialty, despite absence of explicit treaty provision governing that issue).
211. Factor v. Laubenheimer, 290 U.S. 276, 287 (1933);
212. Rauscher, 119 U.S. at 409;
213. see also Ian Brownlie, Principles of Public International Law 315-16 (4th ed. 1990);
214. M. Cherif Bassiouni, International Extradition 12 (1987).
215. Thus, the many exceptions to extradition that are described above, despite their prevalence in bilateral extradition treaties and practice, cannot be regarded as customary norms of international law, or as rights under international law invocable by a suspect facing extradition. Nevertheless, under domestic law, these exceptions sometimes acquire the character of a right that can be invoked by a suspect. Rauscher, 119 U.S. at 429.
216. This is not to say that bilateral extradition does not occur for violations of the laws of armed conflict, crimes against humanity, or genocide. E.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 580 (6th Cir. 1985) (fugitive found extraditable for participating in mass killing of Jews during World War II);
217. In re Extradition of Atukovic, 628 F. Supp. 1370 (C.D. Cal. 1985), stay denied sub nom. Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986) (fugitive found extraditable for World War II offenses);
218. Ahmad v. Wigen, 726 F. Supp. 389, 408 (E.D.N.Y. 1989), aff'd 910 F.2d 1063 (2d Cir. 1990) (fugitive found extraditable for attack on civilians on West Bank, in violation of laws of armed conflict; such violations are not political offenses within U.S.-Israel extradition convention).
219. Most U.S. courts have accordingly rejected the application of the political offense doctrine to such offenses. E.g., Eain v. Wilkes, 641 F.2d 504, 518-23 (7th Cir.), cert. denied, 454 U.S. 894 (1981);
220. Ahmad v. Wigen, 726 F. Supp. at 401-09, aff'd, 910 F.2d at 1066;
221. Artukovic, 628 F. Supp. at 1376;
222. In re Extradition of Demjanjuk, 612 F. Supp. 544, 569-71 (N.D. Ohio 1985). But see cases cited supra note 37.
223. Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int'l L. 554, 568-74 (1995) (discussing applicability of universal jurisdiction to Tribunal offenses).
224. 80 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 (entered into force Aug. 7, 1956);
225. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Amed Conflicts, adopted June 8, 1977, 1125 U.N.T.S. 3 (Protocol I);
226. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Amed Conflicts, adopted June 8, 1977, 1125 U.N.T.S. 609 (Protocol II) (both entered into force Dec. 7, 1978).
227. See supra text accompanying notes 50-58 and treaties cited therein.
228. Extradition, supra note 25, § 15.
229. For a discussion of the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity, see supra note 31 and accompanying text.
230. The modern trend in U.S. bilateral extradition practice is to omit any provision restricting extradition on the basis of a time limitation. E.g., U.S.-Jordan Treaty, supra note 64. This trend is based in part on the recognition that courts are not adept at examining complex foreign legal procedures, and that misapplication of foreign rules on time bar resulting in denial of extradition can create foreign relations problems.
231. U.S. civilian courts would have domestic criminal jurisdiction concurrent to that of the Tribunals only in limited cases. Examples include grave breaches of the Geneva Conventions committed by or against a U.S. citizen or serviceperson, War Crimes Act of 1996, Pub. L. No. 104-192, 110 Stat. 2104 (1996);
232. genocide committed by a U.S. citizen, 18 U.S.C. § 1091(d) (1994);
233. hostage taking, 18 U.S.C. § 1203 (1994);
234. attacks on certain internationally protected persons, 18 U.S.C. §§ 112, 878, 1116 (1994); and terrorist murder of U.S. citizens, 18 U.S.C. §§ 1119, 2332 (1994). It is doubtful that the Constitution would permit U.S. military commissions or other forms of military justice to prosecute most offenses arising out of the Rwandan or Yugoslavian conflicts, given that the U.S. military has not been actively involved in hostilities in either area.
235. House Comm. on the Judiciary, Report on War Crimes Act of 1996, H.R Rep. No. 698, 104th Cong., 2d Sess. (1996). Moreover, there would be enormous logistical difficulties and costs in conducting a U.S. prosecution of offenses over which the Tribunals have jurisdiction, based upon acts taking place thousands of miles from the United States, likely involving witnesses and physical evidence located outside the United States.
236. For further discussion, see supra note 35.
237. National Defense Authorization Act, Pub. L. No. 104-106, § 1342, 110 Stat. 186, 486 (1996). Tide 28 was also amended to satisfy the U.S. obligation to provide other legal assistance to the Tribunals.
238. Id. § 1342(b). The U.S. obligation to assist the Tribunals also extends to cooperation in the gathering of evidence for investigations and prosecutions.
239. Yugoslavia Tribunal Statute, supra note 2, art. 29;
240. Rwanda Tribunal Statute, supra note 1, art. 28. In particular, Congress amended § 28 U.S.C. § 1782 to ensure that several federal court of appeals decisions prohibiting that section's use in foreign preliminary investigations, e.g., Request for International Judicial Assistance for the Federative Republic of Brazil, 936 F.2d 702, 706 (2d Cir. 1991), would not interfere with the U.S. obligation to provide assistance to the Tribunals during investigation as well as prosecution. Commentary and Analysis Accompanying Letter from Andrew Fois, Assistant U.S. Attorney-General, Office of Legislative Affairs, to the Hon. Al Gore, Jr., President of the Senate, July 11, 1995, at 6 ("with respect to requests from the Tribunals, as well as generally with respect to international judicial assistance requests in criminal cases, the provisions of section 1782 are available with tegard to criminal investigations which have recently been commenced to the same extent as those which are nearly completed") (on file with the authors) [hereinafter Commentary].
241. For a discussion of a fugitive's right to higher court review via a petition for a writ of habeas corpus, see infra notes 128-131 and accompanying text.
242. Two provisions of chapter 209 govern matters having no bearing on the activities of the Tribunals: 18 U.S.C. § 3185 (1994) refers to extradition to the United States from Territories or countries under U.S. occupation; 18 U.S.C. § 3192 (1994) governs the protection of a fugitive after extradition to the United States.
243. Commentary, supra note 84, at 4.
244. Id. at 5. On the seat of the Tribunals, see supra note 39.
245. Under Yugoslavia Agreement, supra note 4, art. 5;
246. Rwanda Agreement, supra note 4, art. 5, the Tribunals bear the cost only of transporting fugitives and translating documents.
247. With this modification, the practice with respect to the Tribunals corresponds ro modern extradition treaty practice. Commentary, supra note 84, at 5.
248. See supra note 69 and accompanying text.
249. Fed. R. Evid. 1101(d)(3);
250. Fed. R. Crim. P. 54(b)(5), discussed in Commentary, supra note 84, at 6. Extradition proceedings have their own rules of evidence and procedure that are more flexible in part because foreign governments should not be expected to be versed in U.S. criminal law and procedure.
251. Grin v. Shine, 187 U.S. 181, 184-85 (1902);
252. see also Fernandez v. Phillips, 268 U.S. 311, 312 (1925) ("[f]orm is not to be insisted upon beyond the requirements of safety and justice").
253. In addition to making a strong diplomatic effort to rally the international community to establish the Tribunals, the U.S. government has contributed money, equipment, and services to the Tribunals, as well as a large number of prosecutorial staff. David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 Crim. L.F. 401, 411-12 (1995).
254. Hirota v. McArthur, 338 U.S. 197 (1948) (per curiam) (rejecting attempt by Japanese officials to file habeas corpus petitions);
255. Flick v. Johnson, 174 F.2d 983 (D.D.C. 1949) (rejecting claim by German official convicted by war crimes tribunal to protection of U.S. law).
256. For a discussion of this issue in the context of the establishment of a permanent international criminal court, see Paul D. Marquardt, Law without Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Transnat'l L. 73, 101-08, 119-32(1995).
257. For example, the Tribunals are not U.S. Const, art. III courts because they were not established by Congress. Nor do the Tribunals provide such procedural protections as the right to a jury trial.
258. 338 U.S. at 198-99, 207-15.
259. 174 F.2d at 986.
260. Yugoslavia Tribunal Statute, supra note 2, art. 12;
261. Rwanda Tribunal Statute, supra note 1, art. 11 (requiring "independent" judges);
262. Yugoslavia Tribunal Statute, supra, art. 16(2);
263. Rwanda Tribunal Statute, supra, art. 15(2) ("independent" prosecutor "shall not seek or receive instructions from any Government or from any other State").
264. U.S. Const. art. II, § 2.
265. Id. § 3, cl. 3;
266. see Henkin, supra note 7, at 176.
267. Dames & Moore v. Regan, 453 U.S. 654 (1981);
268. United States v. Pink, 315 U.S. 203 (1942);
269. United States v. Belmont, 301 U.S. 324 (1937);
270. Lawrence Tribe, American Constitutional Law 228 n.18 (2d ed. 1988).
271. See generally Henkin, supra note 7, at 173-88.
272. Restatement, supra note 7, § 1 note 2.
273. U.S. Const. art. VI.
274. E.g., Wilson v. Girard, 354 U.S. 524 (1957) (executive agreement with Japan regulating jurisdiction in criminal matters involving U.S. military valid in light of Senate's prior ratification of U.S.-Japan security treaty, although treaty had no reference to criminal jurisdiction, Senate had agreement before it when it gave advice and consent to treaty).
275. But see Sharon G. Hyman, Note, Executive Agreements: Beyond Constitutional Limits, 11 Hofstra L. Rev. 805, 812-14 (1983) (discussing Senate objections to executive agreements that executive branch claimed were within purview of NATO treaty, including argument that treaty did not "entitle the executive branch for the duration of the treaty unilaterally to conclude any agreement it might wish with a NATO member").
276. But see Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8-9 (1936) (executive authority to extradite may be bestowed only by treaty or statute).
277. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).
278. Valentine ex rel. Neidecker v. United States, 299 U.S. 5 (1936);
279. Neely v. Henkel, 180 U.S. 109, 122 (1901) (Congress constitutionally permitted to enact legislation to ensure extradition of fugitives to U.S.-occupied Cuba pursuant to U.S. obligations under peace treaty with Spain);
280. Williams v. Rogers, 449 F.2d 513 (8th Cir. 1971), cert. denied 405 U.S. 926 (1972) (surrender of U.S. service personnel to Philippines proper since based on congressionally approved executive agreement). While Valentine held that the congressional grant of authority could come by either treaty or statute, treaty is by far the more prevalent means, with bilateral treaties currently in force with over 104 nations.
281. 18 U.S.C. § 3181 appendix (1994).
282. For an example of a statutory basis for international extradition, see 18 U.S.C. § 3181 (1994) (authorizing surrender of non-U.S. citizens, in absence of treaty, for certain acts of violence);
283. see also Marshall Is. Extradition Framework, supra note 47.
284. Such executive agreements, coupled with the legislation, preempt any state law with which there is real or potential conflict. United States v. Belmont, 301 U.S. 324, 332 (1937) ("[C]omplete power over international affairs is in the national Government and is not and can not be subject to the curtailment or interference on the part of the several states.").
285. 18 U.S.C. § 3184 (1994).
286. A fugitive may obtain appellate review only by petitioning for a writ of habeas corpus, which constitutes the functional equivalent of appeal of the decision granting extradition. Collins v. Miller, 252 U.S. 364 (1920);
287. Martin v. Warden, 993 F.2d 824 (11th Cir. 1993);
288. Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990). Direct appeal is permitted only if the applicable treaty explicitly so provides.
289. In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993). If extradition is denied, the government's sole recourse is to refile the request.
290. Ahmad 910 F.2d at 1065;
291. Hooker v. Klein, 573 F.2d 1360 (9th Cir.), cert. denied, 439 U.S. 932 (1978).
292. E.g., Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied 429 U.S. 833 (1976).
293. E.g., Gallina v. Fraser, 177 F. Supp. 856, 866 (D. Conn. 1959), aff'd, 278 F.2d 77 (2d. Cir.), cert. denied, 364 U.S. 851 (1960) ("regardless of what constitutional protections are given to persons held for trial in the courts of the United States... those protections cannot be claimed by an accused whose trial and conviction have been held or are to be held under the laws of another nation").
294. The sixth amendment by its terms applies only to "criminal prosecutions" and extradition is not criminal prosecution. See generally Neely v. Henkel, 180 U.S. 109, 122 (1901) (U.S. constitutional rights have no relation to crimes committed outside U.S. jurisdiction and against laws of foreign country);
295. see also Taylor v. Jackson, 470 F. Supp. 1290, 1291 (S.D.N.Y. 1979) (right to counsel does not apply to extradition);
296. Martin v. Warden, 993 F.2d 824 (11th Cir. 1993) (speedy trial right does not apply to extradition);
297. accord Ferrandina, 536 F.2d at 485 n.9;
298. Oen Yin-Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989) (rights to confrontation and cross-examination do not apply to extradition);
299. accord Messina v. United States, 728 F.2d 77 (2d Cir. 1984). Efforts to claim that the Federal Rules of Evidence or the Federal Rules of Criminal Procedure govern such proceedings have met with the same fate.
300. E.g., United States ex rel. Klein v. Mulligan, 50 F.2d 687, 688 (2d Cir.), cert. denied 284 U.S. 665 (1931) (hearsay evidence found to be reasonable ground on which to extradite fugitive).
301. See supra note 91 and accompanying text.
302. Collins v. Loisel, 262 U.S. 426, 429 (1923);
303. United States ex rel Bloomfield v. Gengler, 507 F.2d 925, 928-29 (2d Cir. 1974). Absent an express treaty provision so providing, there is no non bis in idem obligation between sovereign states.
304. Montiel Garcia v. United States, 987 F.2d 153 (2d Cir.), cert. denied 509 U.S. 930 (1993);
305. United States v. Curbello, 940 F.2d 1503 (11th Cir. 1991). Other legal systems recognize the right of separate sovereigns to prosecute an accused for essentially the same actions.
306. E.g., Penal Code (SrGB) § 51(3) (Ger.) ("If the convicted person has been sentenced abroad for the same act, the penalty abroad will be credited toward the new penalty insofar as it has been executed."). While a non bis in idem clause is featured in many extradition treaties worldwide, including U.S. bilateral treaties, application of such a clause is customarily limited to barring extradition only where the accused was tried in the country from which extradition is requested. There is thus no customary international norm precluding multiple prosecutions by separate sovereigns.
307. But see Bassiouni, supra note 75, at 471 (arguing the contrary).
308. Merino v. U.S. Marshal, 326 F.2d 5 (9th Cir. 1963), cert. denied, 377 U.S. 997 (1964);
309. Freedman v. United States, 437 F. Supp. 1252 (N.D. Ga. 1977).
310. Simmons v. Braun, 627 F.2d 635, 636 (2d Cir. 1980) ("exclusionary rule is not applicable to all stages of even domestic law enforcement"). The exclusionary rule prohibits evidence obtained in an unconstitutional manner from being considered by the factfinder. The rule is subject to numerous exceptions.
311. Wayne R. LaFave, Search and Seizure § 1.1 (3d ed. 1996).
312. Reid v. Covert, 354 U.S. 1, 16 (1957);
313. see also Wilson v. Girard, 354 U.S. 524 (1957);
314. United States v. Minnesota, 270 U.S. 181 (1926);
315. Rosado v. Civiletti, 621 F.2d 1179, 1195-96 (2d Cir.), cert. denied, 449 U.S. 856 (1980) ("although the Constitution cannot limit the power of a foreign sovereign to prescribe procedures for trial and punishment of crimes committed in its territory, it does govern the manner in which the United States may join in the effort");
316. Louis Henkin, Rights: American and Human, 79 Colum. L. Rev. 405, 411 (1979) (treaty-making power cannot abrogate Bill of Rights).
317. E.g., Caltagirone v. Grant, 629 F.2d 739, 741 (2d Cir. 1980).
318. The Constitution is not often cited by U.S. courts as the basis for extradition procedural safeguards. Since extradition treaties almost always contain certain minimum procedural requirements analogous to those provided by the Constitution, courts have often, perhaps misleadingly, observed that the sole procedures required for extradition are those set forth in the applicable treaty. E.g., Ex parte Charlton, 185 F. 880, 884 (C.C.D.N.J. 1911), aff'd sub nom.
319. Charleton v. Kelly, 229 U.S. 447 (1913);
320. United States ex rel. Neidecker v. Valentine, 81 F.2d 5, 39-41 (2d Cir.), aff'd, 299 U.S. 5 (1936).
321. Rosado v. Civiletti, 621 F.2d at 1195 ("to the extent that the United States itself acts to detain a relator pending extradition, it is bound to accord him due process").
322. No decision regarding the applicability of the Constitution to extradition proceedings has enunciated any limitation based on the accused's being an alien. Similarly, reported decisions outside the sphere of extradition have generally extended constitutional protections to aliens within the United States. E.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984) (extending benefit of exclusionary rule to illegal aliens located in United States);
323. Plyler v. Doe, 457 U.S. 202 (1982) (illegal aliens protected by equal protection clause);
324. Wong Wing v. United States, 163 U.S. 228, 241 (1896) (aliens, protected by fifth, sixth, and thirteenth amendments);
325. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (fourteenth amendment protects resident aliens);
326. Benitez-Mendez v. I.N.S., 760 F.2d 907 (9th Cir. 1983) (applying fourth amendment to detention of aliens);
327. Au Yi Lau v. I.N.S., 445 F.2d 217, 223 (D.C Cir.), cert. denied 404 U.S. 864 (1971) ("aliens in this country are sheltered by the Fourth Amendment in common with citizens").
328. See generally Michael J. Tricarico, How Sufficient Is the "Sufficient Connections Test" in Granting Fourth Amendment Protections to Nonresident Aliens, 64 St. John's L. Rev. 629 (1990).
329. But see United States v. Verdugo Urquidez, 494 U.S. 259, 264-75 (1990) (fourth amendment does not apply to search and seizure by U.S. agents of property owned by nonresident alien and located in foreign country).
330. Sahagian v. United States, 864 F.2d 509, 513 (7th Cir. 1988), cert. denied, 489 U.S. 1087 (1989).
331. Gerstein v. Pugh, 420 U.S. 103 (1975) (fourth amendment held to require judicial determination of probable cause in criminal prosecution as prerequisite to extended restraint of liberty).
332. Caltagirone v. Grant, 629 F.2d 739, 741, 744, 747-48 (2d Cir. 1980) (requirement of Italian extradition treaty that provisional arrest be based on information "'as would be necessary to justify the issue [sic] of a warrant of arrest had the offense been committed... in the territory of the requested Party'" treated like probable cause requirement under fourth amendment);
333. see also In re Extradition of Russell, 805 F.2d 1215, 1217 (5th Cir. 1986) (declining to decide this issue given existence of probable cause in case at bar).
334. United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984);
335. United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 564 (2d Cir. 1963), cert. denied 376 U.S. 952 (1964). In Caltagirone, the court attempted to distinguish Marasco on two grounds. First, probable cause appeared to have been established;
336. second, the applicable treaty did not expressly require a showing of probable cause for the initial arrest. Caltagirone, 629 F.2d at 746 n.15, 748 n.19. It appears doubtful that probable cause was established in Marasco.
337. Yugoslavia Tribunal Statute, supra note 2, arts. 18-19;
338. Rwanda Tribunal Statute, supra note 1, arts. 17-18.
339. Cf. Michigan v. Summers, 452 U.S. 692 (1981) (under certain circumstances, police must be able to detain suspect for longer than brief "stop" challenged in Terry v. Ohio).
340. See generally LaFave, supra note 116, §§ 9.2, 9.6. The surrender of war criminals may at times justify departure from fourth amendment standards.
341. Cf. Caltagirone, 629 F.2d at 748.
342. Sayne v. Shipley, 418 F.2d 679, 684-86 (5th Cir. 1969), cert. denied, 398 U.S. 903 (1970) (hearing constitutionally required for extradition of fugitive from U.S. Canal Zone to Panama, despite absence of hearing requirement in governing statute).
343. Fernandez v. Phillips, 268 U.S. 311 (1925);
344. Benson v. McMahon, 127 U.S. 457 (1888);
345. Sayne, 418 F.2d 679.
346. Since chapter 209 and its interpretive case law are applicable to surrender proceedings, such judicial precedents would be equally applicable to cases in which surrender to the Tribunal was being sought. See supra note 110 and accompanying text.
347. Yugoslavia Agreement, supra note 4, art. 2(3);
348. Rwanda Agreement, supra note 4, art. 2(3).
349. Gallina v. Fraser, 278 F.2d 77, 79 (2d. Cir.), cert. denied, 364 U.S. 851 (1960) (presumption of fairness accorded to foreign state's legal system may be overcome if fugitive demonstrates that extradition would expose him to procedures or punishment "antipathetic to a federal court's sense of decency").
350. But see Ahmad v. Wigen, 910 F.2d 1063, 1065-66 (2d Cir. 1990) (judicial inquiry into fairness of foreign legal system inappropriate);
351. Emami v. U.S. District Court, 834 F.2d 1444, 1452-53 (9th Cir. 1987) (court refused to apply Gallina to fugitive's claim that foreign incarceration would endanger his health).
352. Plaster v. United States, 720 F.2d 340 (4th Cir. 1983) (holding that U.S. offer of immunity from U.S. or German prosecution to fugitive could ultimately bar extradition to Germany, reasoning, "The Secretary of State and the President... may not choose to extradite an individual where such extradition would, in the opinion of the judiciary, violate the individual's constitutional rights.").
353. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (kidnapping and torture of fugitive, with participation of U.S. officials, if proven, could shock conscience and entitle fugitive to unnamed relief in appeal of criminal conviction);
354. Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990) (government's conduct in accepting deportation of fugitive from Venezuela in order to extradite him to Israel did not "shock the conscience," hence did not violate Constitution);
355. see also United States ex rel. Lujan v. Gengler, 510 F.2d 62, 66 (2d Cir.), cert. denied 421 U.S. 1001 (1975) ("not every violation by prosecution or police is so egregious that Rochin and its progeny require nullification of the indictment").
356. In these cases, the basis of the potential constitutional violation was conduct by the United States, rather than actions of a foreign power carried out outside the territory of the United States. The Constitution does not purport to regulate such foreign conduct. Rosado v. Civiletti, 621 F.2d 1179 (2d Cir.), cert. denied 449 U.S. 856 (1980). Nor would the Constitution be applicable to actions carried out by a foreign sovereign on a non-U.S. citizen, the fruit of which was later used in a U.S. court.
357. United States v. Verdugo Urquidez, 494 U.S. 259 (1990) (in context of search and seizure carried out in Mexico with knowledge and assistance of U.S. federal agents, court held that U.S. Constitution does not necessarily apply to intrusions of privacy of aliens residing outside and having negligible ties to United States). Accordingly, a fugitive would not often be able successfully to bar the introduction of evidence offered in support of a surrender request on the basis that it had been obtained in an unconstitutional manner.
358. Magisano v. Locke, 545 F.2d 1228 (9th Cir. 1976) (rejecting claim that proof of guilt derived from illegal wiretapping);
359. Stowe v. Devoy, 588 F.2d 336 (2d Cir. 1978), cert. denied 442 U.S. 931 (1979) (wiretap legal under Canadian law cannot be challenged as prohibited by U.S. Constitution).
360. In re Burt, 737 F.2d 1477, 1484 (7th Cir. 1984), rejected a fugitive's claim that the United States was barred by the due process clause from extraditing him to Germany, due to the lengthy delay between the commission of the crime and the request for extradition. The court held, however, that "federal courts... have the authority to consider... the substantive conduct of the United States in undertaking its decision to extradite if such conduct violates constitutional rights."
361. See also In re Extradition of Artukovic, 628 F. Supp. 1370, 1375 (C.D. Cal. 1986) (due process not violated by 27-year delay in extradition, given lack of wrongdoing by U.S. government).
362. For example, a denial of surrender on the ground that Tribunal procedures did not pass constitutional scrutiny would cause foreign policy difficulties equal in magnitude to those that would arise were a court to so hold with regard to the legal system of a foreign state. E.g., Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990);
363. In re Extradition of Manzi, 888 F.2d 204 (1st Cir. 1989), cert. denied 494 U.S. 1017 (1990). In any event, accused persons enjoy numerous rights before the Tribunals that would pass constitutional muster.
364. Yugoslavia Tribunal Statute, supra note 2, art. 21;
365. Rwanda Tribunal Statute, supra note 1, art. 20. Thus, there should be little occasion for U.S. courts to question the integrity of Tribunal proceedings.
366. Some U.S. courts have suggested that where an individual's constitutional rights have been infringed by the United States in the course of executing an extradition request, a refusal to surrender would be inappropriate since the state requesting extradition would suffer, not the party that had committed the illegality. David v. Attorney-General, 699 F.2d 411 (7th Cir.), cert. denied 464 U.S. 832 (1983) (state requesting extradition should not be penalized for allegedly illegal conduct of U.S. agent);
367. cf. Simmons v. Braun, 627 F.2d 635 (2d Cir. 1980) (suppression of evidence illegally obtained by United States inappropriate in extradition proceedings);
368. Romeo v. Roache, 820 F.2d 540 (1st Cir. 1987) (illegal action by state rather than federal officers does not merit dismissal of extradition proceedings). In fact, U.S. telations with the United Nations could also suffer in the event of denying surrender on such a basis.
369. Antonio Cassese, Presiding Judge of the Tribunals, Remarks at a Conference on the Reception by National Courts of Decisions of International Tribunals, New York University Law School, New York, New York, United States (Feb. 17-19, 1995).