11 Briefly, in her paper, von Stein argues that the harder a treaty is, the more ‘selective’ states are about ratification.
12 She has no doubt that harder treaties may actually deter states from joining, and I quote: ‘these institutional features may deter from joining the very states whose environmental practices are least consistent with the treaty’s requirements.’
Unit 11, Lesson 3, Exercise A 2.12 a'lleged 'criminal
'crimes against hu'manity do'mestic 'law extra'dition 'crimes
'fugitive from 'justice i'mmunity from prose'cution inter'national con'vention ju'dicial au'thorities 'sovereign i'mmunity uni'versal juris'diction
Unit 11, Lesson 3, Exercise B 2.13
Part 3 I want now to draw your attention to another aspect of public international law which has an impact on domestic law, and that is extradition. As I am sure you are aware, extradition is the return of an alleged criminal or fugitive from justice to the country in which the alleged offence occurred. We can say, for example, that a person accused of committing a crime in Spain was extradited from the United Kingdom – to Spain, of course. The key question is: in what circumstances can a person be extradited? Some people claim that extradition should only apply to serious crimes, others say that certain people, such as heads of state, should be exempt from extradition. I agree with the first but I just cannot accept the second. Perhaps the most controversial aspect of extradition is the concept of universal jurisdiction. Crimes against humanity, such as torture and genocide, the systematic destruction of a religious or ethnic group, have a special place in international law. These offences may be punished by any state on the grounds that, as the trial judge stated in Demjanjuk v Petrovsky [1985].‘The offenders are common enemies of mankind and all nations have an equal interest in their apprehension and prosecution.’
So, in normal extradition, a person commits a 134
crime in country X and flees to country Y. The government of country X asks the government of country Y to send him back, or extradite him. But, in the case of crimes against humanity, country Z can ask country Y to extradite the person. Why? The most common reason is that the person has harmed, in some way, citizens of country Z in country X. Is that clear? I think I got it right!
Let’s consider the well-known but very complex case involving General Augusto Pinochet, the former President of Chile. He became the President of Chile in 1973 and, after he came to power, was alleged to have been indirectly responsible for the murder or disappearance of a large number of his political opponents, including Spanish citizens. The evidence against the general was compelling. Indeed, as one of the Law Lords pointed out, the facts of the case were not in dispute. In 1998, Pinochet came to London for medical treatment. The Spanish judicial authorities wanted to extradite Pinochet to Spain for these alleged human rights abuses, even though they were committed mainly in Chile and not in Spain. The argument was that the crimes Pinochet had committed were international crimes that were covered by convention and, for these crimes, a person did not have to be extradited to the country where the alleged abuses were committed. The British government put Pinochet under house arrest, pending the outcome of the extradition plea.
Lawyers for the general claimed that he had sovereign immunity because he had been the head of state at the time the alleged abuses occurred. Under common law, a head of state is entitled to immunity from prosecution for actions that were carried out in an official capacity. It is quite clear to me that this argument is false, and the House of Lords agrees with me. They found, by a 3-to-2 majority, that torture was a crime against international law and, for this particular crime, Pinochet was not entitled to immunity and therefore could be extradited to Spain. As it happens, in this case, no extradition took place. Pinochet was deemed too ill to answer the charges and was released by the British government to return to Chile, where he died in 2006.
Clearly, this idea of universal jurisdiction is controversial in international law. The arguments for it are that certain crimes pose such a threat to the international community that there should be no safe haven for anyone who has committed these so-called acts against humanity. However, some people claim that universal jurisdiction is a breach of an individual state’s sovereignty. Under
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