1ProsecutionandExtradition by IDIA

The Institute for Domestic and International Affairs

Committee on Crime Prevention and Criminal Justice Methods of Prosecution and Extradition Rutgers Model United Nations 16-19 November 2006

Director: Andrew Silver

ÂŠ 2006 Institute for Domestic & International Affairs, Inc. (IDIA) This document is solely for use in preparation for Rutgers Model United Nations 2006. Use for other purposes is not permitted without the express written consent of IDIA. For more information, please write us at idiainfo@idia.net

Introduction _________________________________________________________________ 1 Background _________________________________________________________________ 2 Restorative Justice ________________________________________________________________ 7 Extradition ______________________________________________________________________ 8

Current Status ______________________________________________________________ 11 Extradition _____________________________________________________________________ 12

Key Positions _______________________________________________________________ 15 Regional Positions________________________________________________________________ 15 North America__________________________________________________________________________15 Europe ________________________________________________________________________________16 Asia and the Pacific______________________________________________________________________17 Africa ________________________________________________________________________________19 Latin America and the Caribbean ___________________________________________________________19 Middle East ____________________________________________________________________________21

Non-Government Organizations ____________________________________________________ 22 Media Positions __________________________________________________________________ 23 Public Opinion __________________________________________________________________ 23 United States and North America ___________________________________________________________23 Europe ________________________________________________________________________________24 Asia __________________________________________________________________________________24 Africa ________________________________________________________________________________25 Latin America __________________________________________________________________________25

Major Religious Viewpoints _______________________________________________________ 26

Summary___________________________________________________________________ 27 Discussion Questions _________________________________________________________ 28 Works Cited ________________________________________________________________ 29 Works Referenced ___________________________________________________________ 35

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Introduction In the areas of prosecution and extradition, states need to dispense justice in a prudent manner while maintaining respect for human rights. Sovereignty also plays a role in the debate, as the international community attempts to ensure the viability and effectiveness of humane judicial systems while lacking the ability to force if or how states make reforms. States with inhumane judiciaries may not be willing to adapt to international standards, citing their ability as a sovereign state to determine their own policies. They note that a reduction in the severity of the criminal justice system to afford more respect for human rights could actually lead to an increase in criminal activity. According to the United Nations Office on Drugs and Crime, “fair and effective criminal justice systems which ensure respect for the human rights of all those involved are a prerequisite for combating criminality, both national and trans-national, and for building societies based on the rule of law.”1 The efficacy and efficiency of criminal justice systems has been at the heart of the mission of the United Nations since its inception. The United Nations Declaration on Human Rights (UDHR) explicitly lists rights individuals are entitled to in relation to the dispensation of justice; however, in order to deal with the complex issues associated with criminal justice reform, the United Nations has sponsored numerous conferences to add to the rights provided in this document, but also to address the manner in which justice can be meted. The first such Crime Congress took place in Geneva in 1955. Although the conference specifically dealt with the treatment of prisoners, subsequent meetings expanded on the goal of effective, humane criminal justice systems. Recent Crime Congresses in Vienna and Bangkok highlighted modern issues associated with criminal justice systems and extradition treaties, and raised new concerns regarding combating international crime. Participants at these Congresses again noted

United Nations Office on Drugs and Crime, “Crime Prevention and Criminal Justice,” United Nations Office on Drugs and Crime, http://www.unodc.org/unodc/crime_prevention.html.

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the importance of effective judicial systems that respect human rights, highlighting especially the need for their establishment in post-conflict states. In areas emerging from civil war or other forms of unrest, the establishment of a sound criminal justice system is vital to stability and order. Delegates to the Crime Congresses also recognized the increasing transnational dimension of crime. The spread of the Internet and the ease with which criminals and criminal organizations are able to cross borders make it vital that states work together to prosecute and extradite criminals and share information regarding their activities. Providing model treaties on extradition to facilitate state agreements and encouraging states to work cooperatively to solve transnational criminal issues, these conferences have helped bring about change in criminal justice systems throughout the world. They have also encouraged more research and development into the concept of restorative justice, which includes replacing or supplementing traditional forms of criminal

justice

with

between offenders and

Restorative Justice: Restorative justice is a philosophical approach to responding to crime aimed at repairing the harm caused by a criminal act and restoring the balance in the community affected by the crime.

victims of the crime.

Source: www.gov.bc.ca/prem/popt/service_plans/srv_pln/pssg/appen_a.htm

mediation and meetings

They also make simplifying the extradition process a key goal in criminal justice reform, raising the idea of potentially eliminating conventional extradition treaties in favor of regional or international arrest warrants. While many states have criminal justice systems that meet the standards set forth by the United Nations, the Commission on Crime Prevention and Criminal Justice remains committed to implementing more positive change. Programs in states such as Nigeria, for example, are currently working to modernize and reform improper or ineffective judicial standards.

Background While the establishment of strong criminal justice systems is of primary concern to states and the United Nations, the organization also recognizes the need to protect basic human rights while justice is being delivered.

An Economic and Social Council

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resolution concerning International Cooperation in Criminal Matters notes that “the protection of human rights should not be considered inconsistent with effective international cooperation in criminal matters.”2

Many of the fundamental rights

individuals enjoy can be found in the 1948 Universal Declaration of Human Rights. Articles 5 through 11 of the UDHR clearly delineate the vision of the United Nations for criminal justice systems throughout the international community and the rights they must strive to protect. According to these articles, everyone is equal before the law, has the right to remedy ills through “competent national tribunals,” is “entitled…to a fair and public hearing by an independent and impartial tribunal,” and is innocent until proven guilty. While listing individual rights, the Declaration also places restrictions on how states may enforce justice, as it prohibits cruel and unusual punishment, arbitrary arrest, and ex post facto

Ex Post Facto Laws: "after the fact." An ex post facto law is one which makes a particular act illegal, and punishes people who committed that crime before the law was passed, ie, when the act was legal. "Ex post facto" means "from a thing done afterward" in Latin. Source: www.historycentral.com/Civics/E.html

laws.3 Working from these established principles, Member States of the United Nations outlined further their goals and standards for criminal justice systems in the Geneva Conventions. International efforts to develop effective criminal justice systems that also uphold accepted principles of respect for basic human rights began with the First United Nations Congress on the Prevention of Crime and Treatment of Offenders, held in Geneva, Switzerland in 1955. The result of these deliberations is known as the first Geneva Convention, a document created to ensure the protection of the basic fundamental rights and liberties of alleged criminals.

While this agreement acknowledges it is not a

blueprint for how criminal justice systems should be organized it includes the rights and privileges of prisoners generally agreed upon by the international community. 2

United Nations High Commissioner for Human Rights. “International Cooperation in Criminal Matters.” Economic and Social Council Resolution 1997/26. The Economic and Social Council, http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.RES.1997.26.En?Opendocument. 3 United Nations, “Universal Declaration of Human Rights,” United Nations, http://www.un.org/Overview/rights.html.

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Recognizing the inherent differences between states, this convention sought to establish the minimum acceptable standards for dealing with prisoners, and notes that states should seek to adhere to basic judicial standards, such as the rule of law, protection from double jeopardy, and due process. Among the rights afforded to prisoners are clean and healthy sleeping conditions, access to adequate food for proper nutrition, the ability to exercise, and medical care. Moreover, the convention states that if a prisoner is disciplined or restrained, it should only occur in a manner that respects the dignity of the prisoner.4 One of the central principles that member states have sought to ensure is the rule of law. In the resolution concerning the establishment of an effective UN program for crime prevention and criminal justice, the United Nations recognized that “justice based on the rule of law is the pillar on which civilized society rests.”5

Rule of law is

essentially the guarantee that all citizens, including government officials as well as the government itself, must obey the law. The law should be arrived at openly, enforced with principles of equality in mind, and administered by an independent judiciary. All of this must be done while simultaneously respecting internationally accepted human rights standards.6 In addition to ensuring governments follow the rule of law, the United Nations is adamant that torture and other forms of cruel and unusual punishment should never be used. These forms of punishment have been repeatedly condemned regardless of any mitigating circumstances, and states have been urged by the UN to rectify any situations in which an accused criminal has been tortured or subjected to other forms of extreme punishment.7

American Society of Criminology. “First United Nations Congress on the Prevention of Crime and the Treatment of Offenders.” American Society of Criminology, https://www.asc41.com/1st%20UN%20Congress%20on%20 the%20Prevention%20of%20Crime/114%20ACONF.61%20First%20United%20Nations%20Congress%20on% 20the%20Prevention%20of%20Crime%20and%20the%20reatment%20of%20Offenders.pdf. 5 “Resolution Adopted by the General Assembly. 46/152. Creation of An Effective United Nations Crime Prevention and Criminal Justice Programme,” A/RES/46/152, Access UN, http://www.infoweb.newsbank.com/. 6 Economic and Social Council, “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction,” E/CN.15/2006/3, 20 February 2006, Economic and Social Council. 7 “Resolution Adopted by the General Assembly. 59/182. Torture and Other Cruel, Inhuman Or Degrading Treatment or Punishment,” A/RES/59/182, Access UN, http://www.infoweb.newsbank.com/.

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The ten successive Crime Congresses to the original meeting have elaborated and expanded on the vision set forth at Geneva in 1955. Although they have each had different themes and have addressed specific issues, each Congress helped suggest and bring about reform in criminal justice systems. The Tenth Crime Congress met in Vienna, Austria 10-17 April 2000 to address some of the more modern issues facing the international community today. It once again took up the issues of promoting the rule of law, establishing strong criminal justice systems, encouraging combat of transnational crimes through an international forum, effectively preventing new forms of crime, and developing fair systems of justice.

A central theme to emerge through all of the

conclusions reached by the Congress was the need for bilateral, regional, and worldwide cooperation in order to effectively deal with crime prevention and the facilitation of the creation of effective, humane criminal justice systems. The Congress reiterated the responsibility of states to “establish and maintain a fair, responsible, ethical and efficient criminal justice system.”8 One area which the Tenth Crime Congress in Vienna recognized as needing improvement is the elimination of corruption and the development of judicial systems that try accused criminals fairly. Many states suffer from inadequate judiciaries that employ individuals who take bribes or who otherwise stand in the way of true justice. In Cambodia, for example, justice is often difficult to achieve for ordinary citizens. Judicial officials are easily bribed, guilty criminals are often set free, and victims of crimes generally do not see retribution.9 Many states in Africa, such as Liberia, also suffer from criminal justice systems that do not adequately or fairly provide justice. Liberia, which has suffered from successive wars, faces a difficult situation in which rival factions refuse to recognize the legitimacy of the judicial branch. The courts must be strengthened so that the government can reestablish control; however, judges must be trained properly and the law must be made accessible to average citizens to ensure that the rule of law is 8

“Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century.” Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Vienna, 10-17 April 2000. 9 Karen J Coates,“Cambodia Tribunal May Pave the Way for Judicial Reform,” Christian Science Monitor, October 14, 2004, Lexis-Nexis, http://web.lexis-nexis.com.

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accessible and understandable to everyone.10 Similar problems plague states in Latin America, such as Venezuela.

There, attempts to remove the patronage system of

nominating judges met with enormous difficulty, as the government is loathe to give up its power over the judiciary. Many of the judges that cannot be removed are corrupt, making the dispensation of fair justice nearly impossible in Venezuela.11 Through what it named the Judicial Integrity Promotion Programme, participants at the Tenth Congress hope to create more honest, respected criminal justices systems throughout the world. Among the goals of the Programme are reducing in-court delays, bringing about public confidence in the judiciary, making judicial appointments merit based, developing better judicial training, and ensuring that state judiciaries create new codes of conduct including references to integrity and honesty.12 Out of this spirit of judicial reform and the elimination of corruption, the Project for Strengthening Judicial Integrity and Capacity in Nigeria was established in 2001. The primary objectives of this endeavor included a reintroduction of the rule of law and the establishment of a court system capable of handling an increasingly complex and difficult case load.

The

Nigerian government, working in conjunction with the Centre for International Crime Prevention (CICP), launched an in-depth investigation into its court system through data collection, in-person interviews with employees of the judiciary, and a review of the actual institutional framework of the criminal justice system itself.13 Based upon the collected information, the government concluded it was vital that reform be sought in four areas: access to the courts, quality of justice, confidence of the Nigerian citizens in the criminal justice system, and a more efficient means of handling complaints. While reform is in progress, it appears that Nigeria is headed toward the establishment of a

“Liberia: Resurrecting the Justice System,” Africa News, April 6, 2006, Lexis-Nexis, http://web.lexis-nexis.com. Alexandra Olson, “Venezuela Judicial Watchdog Quits, Blames Corruption,” The Associated Press, August 9, 2000. Lexis-Nexis, http://web.lexis-nexis.com. 12 Cyrille Fijnaut and Leo Huberts, ed, Corruption, Integrity, and Law Enforcement, (New York: Kluwer Law International, 2002), 324. 13 Ibid, 325. 11

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judiciary that is not corrupt, but instead is capable of dispensing justice while maintaining respect for basic human rights. 14 Another area of concern for the United Nations is the establishment of law and order in post-conflict states. In states emerging from conflict, either internally or with other states, stabilization can only be achieved through the establishment of justice and order. To this end, the United Nations has been influential in encouraging bilateral and multilateral treaties with states emerging from conflict to ensure that this goal is attainable, and, in some cases, developed states have taken it upon themselves to help underdeveloped states create effective criminal justice systems. The United States, for example, reported in 2004 that it had helped, or was currently aiding, Afghanistan, Haiti, Iraq, Kosovo, and Liberia in the development of stronger judicial systems and police forces in these post-conflict areas. The Netherlands also submitted documentation of aiding the development of good government and strong executive, legislative, and judicial branches in thirty-six states in three regions.15

Restorative Justice One idea that seems to be increasingly popular in the international community, especially for punishment of younger criminals who do not commit violent or serious offenses, is the concept of ‘restorative justice,’ a process through which “offenders, victims, and/or others affected by a crime participate, often with the help of a facilitator, in the resolution of matters arising from that crime.” This form of punishment generally involves the perpetrator compensating the victim in order to return the victim back to where he was before the crime took place. If punishment is sought, it is generally designed to ensure that it is beneficial to both the victim of the crime as well as the society at large.16 In Ghana, for example, restorative justice has helped reduce the 14

Ibid. 328. “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction,” Op. Cit. 16 Eleventh United Nations Congress on Crime Prevention and Criminal Justice. “Workshop 2:Enhancing Criminal Justice Reform, including Restorative Justice .” Eleventh United Nations Congress on Crime Prevention and Criminal Justice. A/CONF.203/10. 15

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workload of criminal courts by moving cases to the local level, where problems can be mediated without formal court proceedings. By allowing criminals to meet victims and learn the consequences of their actions, mediation has been successful in reducing the level of repeat offenses by young citizens. While restorative justice cannot be applied universally, its proponents argue that working within the framework of any state, implementation is possible. The majority of sentences issued under this type of system include community service, damage compensation, or other services that would simultaneously teach the criminal the error of his ways while at the same time benefiting society. This form of mediation, where implemented, has proven to be an effective, cost efficient alternative to traditional forms of punishment. Because the majority of citizens in these states are young, past experiments in strengthening the criminal justice code resulted in overcrowded prisons and stretched national budgets.

Consequently,

restorative justice saves governments money and, ostensibly, provides adequate levels of punishment to prevent or discourage future crime.17 Restorative justice can also as a supplement to traditional criminal justice systems already in place within a state.

Extradition Due to the ever-increasing instances of crime committed across international borders, extradition has become a far more important aspect of the judicial process. Extradition is the “process by which one state surrenders to a requesting state persons accused of crimes against the laws of the requesting state for prosecution.”18 In order for this process to begin,

Extradition: the surrender of an accused or convicted person by one state or country to another (usually under the provisions of a statute or treaty) Source: wordnet.princeton.edu/perl/webwn

there must be a formal request made by one state to

http://daccessdds.un.org/doc/UNDOC/GEN/V05/813/56/PDF/V0581356.pdf?OpenElement 17 “Workshop on Criminal Justice Reform Highlights Need for Restorative Justice as Alternative to Prison, “Eleventh UN Congress on Crime Prevention and Criminal Justice, 22 April 2005, http://un.org/events/11thcongress/. 18 Christopher H. Pyle, Extradition, Politics, and Human Rights, (Philadelphia: Temple University Press, 2001), 324.

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obtain the transfer of an accused criminal residing in another state.19 States generally engage in extradition treaties for four reasons: to obtain offenders that they want to try in reciprocation, to make it easier to punish criminals and establish justice, to avoid allowing criminals within their borders to potentially repeat past crimes, and to avoid tension in the international community regarding refusal to turn over wanted individuals.20 While the majority of extradition treaties are bilateral or regional in nature, the United Nations has passed resolutions concerning extradition, especially concerning the extradition of criminals committing transnational crimes. Resolution 2840 notes that any state that refuses to take part in the extradition process of individuals accused of an international crime is in violation of the UN Charter and generally accepted international law. Resolution 3074 elaborates on this statement, recognizing the intrinsic right of every state to try its own citizens for crimes against the international community.21 However, while states recognize the importance of extradition treaties in ensuring criminals are brought to justice, there are barriers to the establishment of agreements regarding such transfers between states. While extradition seems like a fairly noncontroversial issue, it is not without its detractors.

Canada, South Africa, and the

European Union, among others, will not extradite criminals to the United States without the US government’s assurance that capital punishment will not be sought.22 These states have outlawed the death penalty for crimes on their soil, and will not subject anyone that they are holding for that sort of punishment. While there are situations where extradition cannot take place, the 1997 United Nations Declaration on Crime and Public Safety stresses the need for states to work cooperatively to prosecute and extradite criminals that cross borders to avoid prosecution.23 To facilitate this goal, the United Nations has taken several measures to aid states trying to work together to reach extradition agreements, 19

Ibid. Ibid, 325. 21 Robert Cryer. Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. New York: Cambridge University Press, 2005. 22 Amnesty International, “United States of America: No Return to Execution – The US Death Penalty as a Barrier to Extradition,” Amnesty International, http://web.amnesty.org/library/index/ENGAMR511712001 23 “Resolution Adopted by the General Assembly. 51/60. United Nations Declaration on Crime and Public Security,” A/RES/51/60, Access UN, http://www.infoweb.newsbank.com/. 20

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including the Model Treaty on Extradition by the Eighth Crime Congress of 1990.24 While not a legally binding treaty, this document nevertheless provides an example of how to craft an effective extradition treaty. As the Tenth Congress in Vienna in August 2000 later noted, these model treaties are extremely important tools for states seeking to create extradition treaties.25 A new idea in extradition law is mutual recognition of the validity of warrants. Under this system, an arrest warrant issued in one state could be enforced by one or more other states as well.26 The member states of the EU actually implemented this system beginning in 2004, replacing the extradition process between member states of the European Union with the European Arrest Warrant (EAW).

This new warrant is

applicable in any member state of the European Union. This makes it easier for fugitives to be returned to the country where they committed their crime, and restricts the ability of states to refuse to surrender their own nationals to others within the EU. It simplifies the procedure for turning over criminals, and eliminates the political nature of the extradition process by making the judiciary the sole arbiter in the decision to extradite. No longer can a state’s executive branch refuse to turn over a fugitive if he is ordered to do so by the judicial branch. The treaty formalizing the EAW also reaffirms the basic rights guaranteed Europeans under the European Convention on Human Rights, and ensures that rule of law and due process are respected for all individuals.27 As of November 2004, all member states of the European Union, with the exception of Italy, had enacted legislation accepting and institutionalizing the European Arrest Warrant.28 24

United Nations Crime and Justice Information Network. “Model Treaty on Extradition, Adopted by the Eighth Crime Congress, Havana, 27 August-7 September 1990.” United Nations Crime and Justice Information Network, http://www.uncjin.org/Standards/Rules/r17/r17.html 25 “Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century,” Op. Cit. 26 Eleventh United Nations Congress on Crime Prevention and Criminal Justice. “Workshop 1: Enhancing International Law Enforcement Cooperation, including Extradition Measures.” Eleventh United Nations Congress on Crime Prevention and Criminal Justice. A/CONF.203/9. http://daccessdds.un.org/doc/UNDOC/GEN/V05/815/28/PDF/V0581528.pdf?OpenElement 27 EUROPA – Justice and Home Affairs, “European Arrest Warrant Replaces Extradition Between EU Member States,” EUROPA – Justice and Home Affairs, http://europa.eu.int/comm/justice_home/fsj/criminal/extradition/wai/fsj_criminal_extradition_en.htm. 28 Europa, “Report From the Commission Based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States,” Europa,

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Current Status The most recent Crime Congress was held in Bangkok, Thailand from 18-25 April 2005 and focused on “Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice.”29 The Bangkok Declaration, which emerged from the weeklong discussions, highlighted several of the successes and failures of past criminal justice reform endeavors and discussed what is needed to establish viable judiciaries throughout the international community. Once again emphasizing the importance of the rule of law, the Congress reaffirmed its commitment “to the development and maintenance of fair and efficient criminal justice institutions … in accordance with applicable international standards.”30 In addition to the rule of law, a focal point of the Bangkok Congress was the use of formal and informal measures to enhance international cooperation in law enforcement and reform. Stressing bilateral action, the Congress noted the necessity for states to share information, especially in an age when the rate of transnational crime is ever-increasing. While progress in judicial reform has been seen in some areas of the world, such as the Americas, Europe, and other developed states, the Bangkok Congress pointed out numerous obstacles to effective cooperation between states. Although states are slowly beginning to work together, concerns over sovereignty have limited the amount of information

shared

between

law

practices, an inability to communicate basic

Sovereignty: Sovereignty refers to the power, and the right to exercise that power of self-government that all independent countries have. They can exercise the power of the state without asking permission from another state.

information regarding crimes and criminals

Source: www.naiadonline.ca/book/01Glossary.htm

enforcement agencies.

The diversity of

legal systems, varying law enforcement

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_ oc=2005&nu_doc=63. 29 United Nations Office on Drugs and Crime, “UN Crime Congresses: The Eleventh Crime Congress,” United Nations Office on Drugs and Crime, http://www.unodc.org/unodc/en/crime_cicp_congresses.html. 30 Bangkok Declaration. “Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice.” www.unodc.org/pdf/crime/congress11/BangkokDeclaration.pdf.

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across borders, and differing priorities and approaches regarding criminal justice reform have all helped prevent states from effectively working together.31

Moreover, the

conference noted that “the sheer volume of the criminal justice reforms required [of underdeveloped nations] to keep pace with the rest of the world had been overwhelming.”32

Establishing strong judicial standards while maintaining respect for

basic human rights through comprehensive reform has been especially difficult.33 Another factor limiting judicial reforms is the high cost it represents to states that often can not afford to devote a lot of money to this area. As a result, the Congress promoted continued research into the idea of restorative justice. Recognizing that this idea remains fairly new, and that there has not been enough research and analysis into its viability, the Bangkok Congress supported investigation into its merits as a cheaper, yet effective means of providing justice.34 A follow-up report by the secretary-general in March 2006 concerning standards and norms in crime prevention and criminal justice noted that many states commented on their lack of knowledge concerning restorative justice and the opportunities the United Nations provides in helping implement these programs.35

Extradition The Bangkok Crime Congress made several observations stressing the need for continued cooperation in the extradition and prosecution of criminals that cross borders. While criminals continue to evade justice by crossing borders in the hope of reaching Asylum: a status offered by one nation to a citizen of another nation, because the individual fears harm from the nation of origin. Source: www.saskschools.ca/curr_content/ law30/international/internationalvocab/vocab.html

asylum, in today’s world criminals can commit economic or computer crimes without leaving their own state. As criminal organizations

and

individual

criminals

become more mobile, the need for effective

“Workshop 1: Enhancing International Law Enforcement Cooperation, including Extradition Measures,” Op. Cit. “Workshop on Criminal Justice Reform Highlights Need for Restorative Justice as Alternative to Prison,” Op. Cit. 33 Ibid. 34 “Workshop 2:Enhancing Criminal Justice Reform, including Restorative Justice,” Op. Cit. 35 Economic and Social Council. “Standards and Norms in Crime Prevention and Criminal Justice: Report of the Secretary General.” E/CN.15/2003/10. 12 March 2003. Economic and Social Council. 32

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extradition treaties and international cooperation in bringing criminals to justice is becoming increasingly important. The delegates of the Bangkok Congress supported continued efforts to build bilateral treaties and agreements, preferring them to more complicated, multilateral efforts. Bilateral treaties were emphasized because they are more specific, can be tailored to the unique needs of two nations, and are generally easier to negotiate.36 As terrorist activity remains prominent throughout the world, international agreements regarding deportation and extradition of suspected terrorists are becoming increasingly important. In March 2005, General Assembly Resolution 59/195 urged states not to recognize political grounds as a justification for a refusal to extradite.37 States are joining together to draft treaties that allow them to bring suspected terrorists to justice more efficiently while respecting fundamental rights.

One of the most recent

examples of this is the treaty signed between Libya and the United Kingdom.

exchange for Libya’s promise to deliver justice in a humane manner, Great Britain, which has been hesitant to extradite individuals to that state for fear that their rights would be abused, will now send criminals against whom Libya has legitimate legal claims. This was only made possible after the Libyan government gave repeated assurances to Great Britain that the safety of deported suspects would be guaranteed.

Human rights

advocates like Amnesty International UK denounce the agreement, believing it dangerous to simply take the Libyan government at its word that it will respect basic rights considering its history of violence and torture of accused criminals. Yet, the British government, which is forbidden by the European Union agreement from deporting individuals to states where they might face cruel punishment or the death penalty, believes that the deal represents a positive step in allowing for safe deportation of terror

“Workshop 1: Enhancing International Law Enforcement Cooperation, including Extradition Measures,” Op. Cit. “Resolution Adopted by the General Assembly. 59.195. Human Rights and Terrorism,” A/RES/59/195, Access UN, http://www.infoweb.newsbank.com/.

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suspects. The British are currently working on agreements similar in nature with other states, as well.38 Regardless of the number of bilateral and multilateral extradition treaties in place today, the Bangkok Crime Congress notes a pressing need for more treaties and a review of existing agreements to determine if they can be strengthened, and recommended that states enact domestic legislation concerning extradition. While this would not replace extradition treaties between states, it would establish procedures for extradition that could make the process easier. Moreover, the Congress urged states to take measures to avoid situations where one nation refuses to extradite an individual, such as cases of dual criminality. In these instances, an action considered a crime in one state is not considered a crime in another, which can prevent extradition from taking place. Therefore, the Congress deemed it essential that, at least at the regional level, states coordinate more effectively to ensure that such situations do not arise.39 Many states restrict or prohibit the extradition of their own nationals. Some states such as France, Germany, and Brazil have constitutional barriers prohibiting extradition of nationals, while others like Mexico and Bolivia can only extradite their own citizens only under certain circumstances proscribed by law. While the Bangkok Congress noted that more states are willing to extradite their own citizens, it also suggested that states accept temporary surrender of alleged criminals to the state that wants to put them on trial. Then, once the trial is complete, the criminal can serve his sentence in the state responsible for deporting him. Finally, the Congress suggested that in the interest of expedient and fair justice, the requirements for proof of a crime prior to extradition be kept to a minimum. While this is not to suggest that states should freely extradite individuals without consideration of possible guilt, it is simply an argument to prevent prolonged proceedings and to simplify the extradition process.40

“Britain Signs Deal With Libya on Deporting Terror Suspects,” Agence France Press, October 18, 2005, Lexis Nexis, http://web.lexis-nexis.com. 39 “Workshop 1: Enhancing International Law Enforcement Cooperation, including Extradition Measures.” 40 Ibid.

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Key Positions The very nature of judicial systems relate so closely to sovereignty that states are often hesitant to let others have significant influence on how they handle their criminal justice systems. States with traditionally advanced judiciaries are hesitant to surrender control of it to external bodies, and states that rely on failed criminal systems are often dependent upon its integral use of corruption and patronage.

Regional Positions As much of the world is broken into regions in which similar forms of government, religion, and economy are clustered together, it is possible to assess the status of judiciaries not only within a given state, but also in regions. The following descriptions are limited in nature, and should only be used to draw comparisons among seemingly similar states.

North America In the United States, rule of law, respect for fundamental rights, and the right to a fair trial free of cruel and unusual punishment are paramount in the Constitution and the Bill of Rights. Likewise, in December 2004 the Mexican Congress passed legislation aimed at reforming state judicial practices, seeking to protect basic rights and establish a stronger judiciary, largely through the elimination of torture as a means to extract confessions or information regarding crimes. While the legislation affords criminals a presumption of innocence and disallows evidence to be presented in court if it is obtained illegally, exceptions are made for individuals participating in organized crime. These Mexican citizens would not be guaranteed the same due process rights as other criminals.41 Canada has also undergone reform of its judicial process, emphasizing the use of restorative justice to help mediate conflicts between criminals and their victims.42

Human Rights Watch. “Mexico: Anti-Torture Provisions Key to Justice Reform.” Human Rights Watch, http://hrw.org/english/docs/2004/12/08/mexico9811.htm 42 Economic and Social Council. “Follow-Up to the Plans of Action for the Implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century: Report of the Secretary General.” E/CN.15/2005/12. 25 April 2005. Economic and Social Council.

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The United States is a party to more than 110 bilateral extradition treaties with other states, and between 1995 and 2000, more than six hundred criminals were returned to the United States by its treaty partners.

The U.S. has also been responsible,

particularly in Latin America, for helping to eliminate some of the barriers to the extradition process, leading to the arrest, detention, and extradition of numerous criminals.43 There are, however, five limitations on extradition to other states by the U.S. First, the United States requires an extradition treaty with the state requesting the criminal. Second, extradition is generally limited to crimes listed in these treaties, which are generally felonies. Third, extradition is usually only granted for crimes that would be considered criminal offenses had they been committed in the United States. Fourth, individuals can only be extradited for crimes allegedly committed in the extradition request. Finally, the US will not extradite individuals accused of committing political crimes. Canada has a poor record with regard to extraditing or prosecuting suspected war criminals. Possibly not wanting to alienate certain sectors of the voting population, Canada is home to numerous Nazi war criminals, and has not sought prosecution or extradition for the majority of them.44

Europe The Charter of Fundamental Rights of the European Union guarantees accused criminals certain rights to protect them from arbitrary judgments. Among those rights are equality before the law, the right to a fair trial, presumption of innocence and the ability to defend oneself in court, proportionality between

Double Jeopardy: the prosecution of a defendant for a criminal offense for which he has already been tried Source: wordnet.princeton.edu/perl/webwn

the crime and the punishment, and the right to be

U.S. Department of State, “Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001,” US Department of State, www.state.gov/documents/organization/6545.doc. 44 Andrea Mrozek, “Rest Home for the Wicked: Simon Wiesenthal Denounced Canada Years Ago for Failing to Bring War Criminals to the Justice,” Western Standard, October 31, 2005, Lexis-Nexis, http://web.lexis-nexis.com.

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free from double jeopardy.45 In Turkey, for example, accused criminals are afforded the right to legal representation when taken into custody. Time limits exist to prevent individuals from sitting in prison for excessive amounts of time while waiting for a trial or sentence.

Additionally, elements of restorative justice and alternative forms of

punishment such as community work, compensation for damages, and weekend or home confinement are in place. Within the borders of the European Union, extradition has been replaced by the European Arrest Warrant, which is a simple process for criminals to be sent from one country to another. As a result, the extradition process between states of the European Union is depoliticized, and it requires less time to request and deliver fugitives. Outside of its own borders, the European Union does not recognize an absolute right to extradition. Article 19 Clause 2 of the Charter of Fundamental Rights of the European Union, for example, notes that no one may be extradited to a state where there is a possibility that the individual “would be subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment.”46 Additionally, some states, such as France and Germany, constitutionally prohibit extradition of their citizens to states that are not members of the European Union.47

Asia and the Pacific Due to the crackdown on criminal endeavors by the United States, Europe, and parts of Asia, there is a possibility that criminal organizations may relocate to the remote islands of the Pacific Ocean. As a result, the islands have taken collective action to ensure

that

justice

prevails,

including

strengthening

communication

between

governments, law enforcement agencies, and bank systems. Individual states have also established programs designed to introduce needed judicial reforms.

In 2004, the

Maldives developed a four year plan to address flaws in its criminal justice system.

Official Journal of the European Communities, “Charter of Fundamental Rights of the European Union,” European Union, http://www.europarl.eu.int/charter/pdf/text_en.pdf. 46 Ibid. 47 U.S. Department of State, 4.

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Goals for reform include improving the prison system, revising the penal code, and introducing modern techniques for gathering evidence to ensure more certainty of guilt or innocence.48 Japan has incorporated elements of restorative justice into its penal code. The state encourages settlements between victims and offenders, and the judiciary takes such agreements into account when issuing criminal sentences.49 China has been notoriously slow in reforming its judicial standards to recognize human rights. Although torture was technically made illegal in a series of 1996 reforms to Chinese judicial practices, a special envoy from the United Nations concluded in December 2005 that, while on the decline, torture still remains widespread in China. To bring state judicial standards to the level sought by the United Nations, China would first need to include rights such as that to a fair trial and the presumption of innocence until guilt is proven. However, although China’s adjustments to its criminal justice system have not brought the capacity to dispense justice up to international standards, that China allowed United Nations investigators to examine criminal justice procedures and interview prisoners is seen as a step in modernizing the process.50 Likewise, Cambodia is plagued by an inefficient and corrupt judiciary. People are often arrested and illegally detained, defendants are not provided lawyers, and government officials who should be addressing these issues are themselves accused of participating in illegal activities.51 The judiciary of Vietnam is controlled by an undemocratic regime that effectively controls the entire court system, denying the defense an opportunity to call witnesses and generally proceeding through trial without providing the defendant a lawyer. Accused criminals are sometimes beaten, and when sent to prisons are forced to endure terrible conditions.52

Economic and Social Council. “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction.” E/CN.15/2006/3. 20 February 2006. Economic and Social Council. 49 “Follow-Up to the Plans of Action for the Implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century: Report of the Secretary General,” Op. Cit. 50 Ching-Ching Ni, “Torture Still Common in China, U.N. Team Concludes,” Los Angeles Times, December 3, 2005, Lexis-Nexis, http://web.lexis-nexis.com. 51 Freedom House, “Country Report: Cambodia,” Freedom House, http://freedomhouse.org. 52 Freedom House, “Country Report: Vietnam,” Freedom House, http://freedomhouse.org.

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Africa Africa has recently taken many steps to reform its judicial standards, most recently at the Pan-African Conference on Prison Reform, which took place in 2002.53 Nigeria’s criminal justice system is undergoing extensive change to make it more cost efficient, humane, and effective. Although its criminal justice system suffered while the state was under military rule, Nigeria’s reemergence as a democratic state in 1999 led to modernization of its judicial standards. The ministry of justice underwent extensive change, and prison congestion was reduced through implementation of alternative punishments. Overall, justice was made more accessible and fair. Morocco also began judicial reforms in 2003 based on the UN Declaration of Human Rights.

Legal

proceedings are now carried out under time limits, reducing the time needed to dispense justice. Prisons are monitored more closely, with visits from judges and officers of the law, among others, to ensure that prisoner rights are respected. Morocco now guarantees accused criminals access to legal representation. 54 Likewise, Senegal implemented a ten year plan beginning in 2003 designed to bring about more efficient judicial services, including the development of jurisdictions. Senegal also adopted elements of restorative justice, including using public works as sentences and allowing prosecutors to propose mediation between the criminal and victim. The Senegalese government also established a committee to reform the state’s penal code.55

Latin America and the Caribbean The international community views Haiti as maintaining a seriously flawed criminal justice system. The courts are corrupt and inefficient, highlighted best by the use of French instead of Creole, the language spoken by a majority of Haitians, to conduct official proceedings. Prison conditions are terrible, and extra-judicial killings by the police and other members of the state apparatus are prevalent.56 Likewise, conditions

“Standards and Norms in Crime Prevention and Criminal Justice: Report of the Secretary General,” Op. Cit. “Workshop on Criminal Justice Reform Highlights Need for Restorative Justice as Alternative to Prison,” Op. Cit. 55 Ibid. 56 Freedom House, “Country Report: Haiti,” Freedom House, http://freedomhouse.org. 54

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in Colombia often prevent citizens from receiving fair judicial treatment. The judicial system is extremely corrupt and extortion is common. Those citizens that are sentenced to prison face perilous conditions, as jails are overcrowded and marred by rioting. While these states still face problems with their judicial systems, some Latin American states have reformed previously corrupt and inefficient systems.57 Chile began reform of its judicial practices in 2000 in the hopes of bringing its criminal justice system up to its Constitutional standards, establishing the right of any accused criminal to receive legal assistance and called for more open proceedings with established procedures, and eliminated the process in which the prosecutor also served as the judge. Defendants were also granted many basic rights they previously lacked, such as the right to be informed of the crime of which they are being accused, the right to an attorney, and the right to remain silent. As a result of these changes, many more people took advantage of legal representation provided to them by the state, and public confidence in the judicial process has grown. 58 Additionally, governments in Guatemala and El Salvador have clarified their legal codes to bring them up to the standards of the international community.59 States in the region also took part in the Latin American Conference on Penal Reform and Alternatives to Imprisonment in 2002 to discuss possible changes to judicial systems.60 In addition to legal reforms, many states in Latin America participate in extradition treaties, yet there are also barriers to the successful extradition of criminals from Latin American states. Brazil, Mexico, and Bolivia all have laws making it illegal to extradite their own citizens, meaning that their citizens can commit crimes in other states and return home without fear of being extradited back to the state in which the crime was committed.61

Freedom House, “Country Report: Colombia,” Freedom House, http://freedomhouse.org. “Workshop on Criminal Justice Reform Highlights Need for Restorative Justice as Alternative to Prison,” Op. Cit. 59 “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction.” 60 “Standards and Norms in Crime Prevention and Criminal Justice: Report of the Secretary General,” Op. Cit. 61 U.S. Department of State, 4. 58

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Middle East Many states in the Middle East suffer from corrupt criminal justice systems that fail to dispense justice in a fair manner. In Saudi Arabia, for example, the monarchy is the final judicial authority, and controls all levels of the court system. The government fails to meet international standards with regard to the rule of law and often holds secretive trials. Accused criminals are held for inordinate amounts of time and are subjected to torture to extract confessions and other information.62 Additionally, while Egypt is widely considered to have modern judicial standards, their criminal justice system is nevertheless plagued with problems. Security and terrorism-related cases are often sent to military courts instead of the traditional civil courts, where judges are appointed by the king, removing their independence from other branches of government, and the level of evidence needed to convict in these trials is generally not as high as in civil cases. Accused criminals are often forced to confess by state officials.63 Some states in the Middle East have fair judicial practices, or are working to develop effective, humane judiciaries. Oman has constitutional provisions establishing the rule of law as the legal basis for the legitimacy of the government. Additionally, the constitution separates powers between different government branches, establishes a judicial branch independent of all other government organizations, and guarantees certain individual rights to citizens and foreigners traveling in the state. Oman has also taken steps to implement restorative justice, believing it could lead those affected by a crime to effectively reintegrate into society. Likewise, the Syrian Ministry of the Interior has attempted to ensure the rule of law, combat terrorism, and prevent crime. Criminal justice institutions were amended in the state to allow it to better deal with these issues.64 Israel’s legal system dictates that while its citizens may be extradited to other states, any sentence imposed on the fugitive will be carried out by Israeli law enforcement. Punishment of non-citizens extradited by Israel may, however, be fulfilled by the 62

Freedom House, “Country Report: Saudi Arabia,” Freedom House, http://freedomhouse.org. Freedom House, “Country Report: Egypt,” Freedom House, http://freedomhouse.org. 64 “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction,” Op. Cit. 63

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receiving state. Israel is able to set such a policy because if a state refuses to accept the stipulation that Israel will enforce the punishment, the accused criminal will not be extradited or tried.65

Non-Government Organizations The Bangkok Congress recognized the importance of non-governmental organizations (NGOs) and reiterated the United Nations’ commitment to utilizing them to strengthen judiciaries.66 NGOs are proponents of ensuring that effective criminal justice systems maintain respect for basic human rights. To protect human rights and govern effectively, Amnesty International believes that the “rule of law is the cornerstone of the protection of human rights and systems of governance based on the values of the Universal Declaration of Human Rights.”67

Their primary focus is not the viability of

criminal justice systems, but rather respect for human rights and dignity. Moreover, organizations such as the International Committee of the Red Cross are invaluable in visiting prisons to determine whether or not basic rights are being respected and upheld, a right granted them by the Geneva Conventions. In this way, they help to expose states that restrict guaranteed rights, highlighting the need for effective reform.68 Additionally, NGOs are adamant that criminals should not be extradited to states that lack effective judicial systems or violate human rights. Amnesty International, Human Rights Watch, and the civil rights group Liberty, for instance, are outraged over the extradition agreement between Libya and Great Britain.

While recognizing the

British government’s need to prevent terrorist attacks like the July 2005 bombings and bring perpetrators to justice, Human Rights Watch and Amnesty International do not believe that Britain, or other states, should accept the promise of states like Libya not to torture suspects. These organizations claim to have documentation regarding beatings of 65

U.S. Department of State, 4. “11th U.N. Crime Congress Concludes With Adoption of Bangkok Declaration Calling for Action Against Organized Crime, Terrorism,” Hindustan Times, April 25, 2005, Lexis-Nexis, http://web.lexis-nexis.com. 67 Amnesty International, “Building an International Human Rights Agenda: Reforming and Strengthening the Justice Sector,” Amnesty International, http://web.amnesty.org/report2004/hragenda-4-eng 68 “Workshop 2:Enhancing Criminal Justice Reform, including Restorative Justice,” Op. Cit. 66

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prisoners, the use of electric shock treatment, and feel that “deporting suspects to Libya would put them at serious risk of torture.”69

Media Positions The media is extremely important in exposing flawed criminal justice systems and drawing attention to the plight of individuals and groups facing unfair judicial practices. The Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders noted that the mass media must play a role if effective criminal justice reform is to take place.70 According to United States Supreme Court Justice Anthony Breyer, a critical media is an essential element in making citizens confident in their judiciary. While noting that judicial officials might not always agree with their portrayal in the media, Breyer stressed that the media “is a necessary institution in a society if we’ll have the rule of law.”71

Public Opinion One of the challenges of a fair and effective judicial system is ensuring that it has the support of the population. During times of duress, people often agree to overlook specific legal protections to ensure the safety of the masses.

Moreover, they are

sometimes willing to forego human treatment of prisoners if they have been convicted of particularly violent crimes.

United States and North America In the aftermath of the 11 September 2001 attacks, American citizens believed that using extradition treaties was not sufficient for bringing terrorists to justice. Rather, by a margin of almost thirty percent in New York and Washington, they supported military attacks against states known to have links to terrorist activity.72 Additionally, in an effort to ensure that those responsible for the deaths from those attacks were punished, the 69

“Britain Signs Deal With Libya on Deporting Terror Suspects,” Op. Cit. “Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century,” Op. Cit. 71 “Critical Media Good for Judiciary,” Manila Standard, November 30, 2005, Lexis-Nexis. http://web.lexis-nexis.com. 72 “Attack Terrorists, Don’t Extradite: US Poll.” SAPA, September 18, 2001. Lexis-Nexis, http://web.lexis-nexis.com. 70

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American government implemented a process that allowed for the capture of alleged criminals in one state, and the transfer to another for interrogation and imprisonment. This process, while initially supported in the United States has undergone intense criticism, both from American citizens and the international community.

Europe The United States asked Serbia to sign a treaty pledging not to extradite U.S. nationals to the International Criminal Court, causing a gap between the government and the people. While the political elite favor the agreement, fifty-seven percent of Serbians believed that it would be wrong for the government to agree to the deal.73 In Russia, the citizenry is becoming increasingly concerned with the efficacy of the judicial system. They believe that in order to better implement the rule of law, that Russian judges should be held to the same standards as the rest of society and made criminally accountable for their actions.74

Asia In China, much of the criminal caseload is dealt with at the local level. Because of low pay and long hours in rural settings, the Chinese are experiencing difficulty recruiting competent judges to fill these positions. Increasingly, the Chinese public is becoming dissatisfied with the situation and calling for reform.75

In 2001, Japan

attempted to reform its judicial systems based on public sentiment. Believing that the court system was not in agreement with the views of the public, Japan introduced the idea of allowing citizens to take a more proactive role in judicial decisions by creating a jury system.76

“Serbia: Poll Shows Majority Siding With Old Europe, Denying US Immunity Request,” BBC Monitoring International Reports, June 10, 2003, Lexis-Nexis, http://web.lexis-nexis.com. 74 “Opinion Poll: 91% Think That Judges Should Be Made Criminally Accountable,” Ros Business Consulting Database, November 16, 2001, Lexis-Nexis, http://web.lexis-nexis.com. 75 Shi Jiangtao, “Reforms Depend on Doing Justice to Grass-Roots Courts: Judiciary,” South China Morning Post, March 14, 2006, Lexis-Nexis, http://web.lexis-nexis.com. 76 “Proposals Tip Scales of Justice in Favor of Public Opinion,” The Nikkei Weekly, November 19, 2001, Lexis Nexis, http://web.lexis-nexis.com.

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Africa In Nigeria, reforms have been made to create a judiciary more in line with international standards; however, more needs to be done by the government to garner the trust of its citizens. Nigerians feel that the most significant flaws in the judicial system occur in the selection of judges, including a nontransparent recruiting process, appointment using the spoils system, and a lack of accessibility to those not of the highest class.77 As part of the

Spoils System: the system of employing and promoting civil servants who are friends and supporters of the group in power Source: wordnet.princeton.edu/perl/webwn

Judicial Integrity Promotion Programme, a public opinion survey in Uganda highlighted many of the issues going on in the state. Two-thirds of Ugandans had been forced to bribe the police, while half had paid off individuals working in the court system. More alarmingly, almost one-fifth of the population believes that corruption is only getting worse, and among workers there is very little support for firing or punishing corrupt individuals.78

Latin America Although the relationship between Colombia and the United States is strong, there is increasing disillusionment among Colombian citizens over the extradition relationship with the United States. In its attempt to combat the drug trade, the U.S. is trying drug dealers and traders without extraditing them to Colombia; however, the majority of Colombian citizens believe that the United States should honor its extradition treaty commitments and allow their judiciary, which they feel is competent, to punish individuals for drug-related charges.79

“Nigeria, Judicial Reform: Proposals for Reform.” Africa News, February 28, 2006. Lexis-Nexis, http://web.lexis-nexis.com. 78 United Nations Office on Drugs and Crime, “Uganda,” United Nations Office on Drugs and Crime, http://www.unodc.org/unodc/en/corruption_projects_uganda.html. 79 “Extradition Muddies US Relations.” Andean Group Report, April 12, 2005. Lexis-Nexis, http://web.lexis-nexis.com.

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Major Religious Viewpoints Some Islamic states reported that, for religious purposes, they adopted elements of restorative justice. Judges in Oman, for instance, look to the Koran and Sunnah to support conciliation and mediation.80 Catholicism also calls for reform of international criminal justice systems.

According to U.S. Roman Catholic bishops, “a Catholic

approach begins with the recognition that the dignity of the human person applies to both victim and offender.” As such, in addition to rejecting the idea of mandatory sentences, Catholics believe in compassion for crime victims and rehabilitating criminals.81 Individual Catholic organizations, such as Pax Romana, attempt to establish effective criminal justice systems and reduce crime by fighting poverty and injustice. Working at the local level, these organizations try to prevent urban crime and support adherence to the United Nations Standards and Norms in Crime Prevention and Criminal Justice, especially with regard to independent judiciaries.82

During the years following the

Holocaust, the Jewish community, especially due to the leadership of Simon Wiesenthal, supported extradition treaties that would bring Nazi war criminals to trial. Although the number of living Nazi war criminals is diminishing, Jewish organizations strongly support their extradition.83

“The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in Post-Conflict Reconstruction,” Op. Cit. 81 John Rivera, “Bishops Call for Justice Reforms, Compassion for Victims of Crime,” Pittsburgh Post-Gazette, November 16, 2000, Lexis-Nexis, http://web.lexis-nexis.com. 82 “Follow-Up to the Plans of Action for the Implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century: Report of the Secretary General,” Op. Cit. 83 Mrozek, Op. Cit.

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Summary The need to effectively provide justice while respecting human rights is of primary concern to the United Nations. Moreover, while international consensus builds toward judicial reform, it is necessary to consider the sovereign right of states to dispense justice in the manner they see fit. Since its inception in 1948, the United Nations has repeatedly held conferences and issued resolutions seeking to fulfill its mission of ensuring that states are able to provide justice and protect basic individual rights. Beginning with the Geneva Convention of 1955, which addressed the rights of prisoners during times of war, and continuing through the ten successive Crime Congresses, the UN has sought to create minimum standards for criminal justice systems. While parts of the world, such as China, must continue working to modernize their judicial practices, United Nations action has helped states like Nigeria and Mexico make important changes in their criminal justice procedure. Recently, the emphasis on criminal justice reform has focused on extradition, new forms of dealing with criminals such as restorative justice, and international cooperation to combat new forms of crime. Extradition treaties, such as that recently signed by the United Kingdom and Libya, highlight the ability of states to work through differences to establish treaties aimed at facilitating criminal prosecution. More states are also working to implement aspects of restorative justice into their penal code. A cheaper method of dealing with criminals, continued research into restorative justice could prove it to be valuable as a replacement or supplement for existing judicial practices, especially in poor states. With the advent of the Internet and the increased ease with which criminals are able to cross borders, the United Nations considers it fundamentally important that states work cooperatively to deal with criminals and criminal organizations.

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Discussion Questions • How important are viable criminal justice systems? How important is it that these systems also respect human rights? • Is your state’s criminal justice system up to the standards and norms outlined by the United Nations? If not, how has it worked to meet these goals? • What international or regional accords has your state been a party to regarding criminal justice reform or extradition? • How has your state sought to reform its criminal justice system? Has action been undertaken at the international, regional, or bilateral level? • What is your state’s policy regarding extradition? Has your state concluded treaties with other nations? If not, what barriers or obstacles have prevented the state from doing so? • Do regional arrest warrants, such as the European Arrest Warrant, provide a viable option as a replacement for extradition either regionally or globally? Why or why not? • How effective has United Nations action in the area of criminal justice reform and extradition policy been? How can it be strengthened? • How can the United Nations encourage and implement judicial reform while respecting national sovereignty? • What are the major principles and ideals that your state attempts to uphold in its criminal justice system? • Has your state introduced elements of restorative justice into the penal code? If so, have these measures proved effective alternatives to traditional punishments, such as incarceration?

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Works Cited “11th U.N. Crime Congress Concludes With Adoption of Bangkok Declaration Calling for Action Against Organized Crime, Terrorism.” Hindustan Times, April 25, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Academy of Criminal Justice Sciences. “Constitution and By-Laws.” Academy of Criminal Justice Sciences, http://www.acjs.org/pubs/167_664_8214.cfm. American Society of Criminology. “First United Nations Congress on the Prevention of Crime and the Treatment of Offenders.” American Society of Criminology. https://www.asc41.com/1st%20UN%20Congress%20on%20the%20Prevention%2 0of%20Crime/114%20ACONF.6.1%20First%20United%20Nations%20Congress %20on%20the%20Prevention%20of%20Crime%20and%20the%20Treatment%2 0of%20Offenders.pdf Amnesty International. “Building an International Human Rights Agenda: Reforming and Strengthening the Justice Sector.” Amnesty International, http://web.amnesty.org/report2004/hragenda-4-eng Amnesty International. “United States of America: No Return to Execution – The US Death Penalty as a Barrier to Extradition.” Amnesty International, http://web.amnesty.org/library/index/ENGAMR511712001 “Attack Terrorists, Don’t Extradite: US Poll.” SAPA, September 18, 2001. Lexis-Nexis, http://web.lexis-nexis.com. Bangkok Declaration. “Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice.” www.unodc.org/pdf/crime/congress11/BangkokDeclaration.pdf. “Britain Signs Deal With Libya on Deporting Terror Suspects.” Agence France Press, October 18, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Center for Justice and International Law. “Programs: Legal Defense Program.” Center for Justice and International Law, http://www.cejil.org/programas.cfm.

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Coates, Karen J. “Cambodia Tribunal May Pave the Way for Judicial Reform.” Christian Science Monitor, October 14, 2004. Lexis-Nexis, http://web.lexis-nexis.com. “Critical Media Good for Judiciary.” Manila Standard, November 30, 2005. Lexis-Nexis. http://web.lexis-nexis.com. Cryer, Robert. Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. New York: Cambridge University Press, 2005. Economic and Social Council. “Follow-Up to the Plans of Action for the Implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century: Report of the Secretary General.” E/CN.15/2005/12. 25 April 2005. Economic and Social Council. Economic and Social Council. “The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, Including in PostConflict Reconstruction.” E/CN.15/2006/3. 20 February 2006. Economic and Social Council. Economic and Social Council. “Standards and Norms in Crime Prevention and Criminal Justice: Report of the Secretary General.” E/CN.15/2003/10. 12 March 2003. Economic and Social Council. Eleventh United Nations Congress on Crime Prevention and Criminal Justice. “Workshop 1: Enhancing International Law Enforcement Cooperation, including Extradition Measures.” Eleventh United Nations Congress on Crime Prevention and Criminal Justice. A/CONF.203/9. http://daccessdds.un.org/doc/UNDOC/GEN/V05/815/28/PDF/V0581528.pdf?Ope nElement Eleventh United Nations Congress on Crime Prevention and Criminal Justice. “Workshop 2:Enhancing Criminal Justice Reform, including Restorative Justice .” Eleventh United Nations Congress on Crime Prevention and Criminal Justice. A/CONF.203/10. http://daccessdds.un.org/doc/UNDOC/GEN/V05/813/56/PDF/V0581356.pdf?Ope nElement Europa. “Report From the Commission Based on Article 34 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States.” Europa,

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http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&l g=en&type_doc=COMfinal&an_doc=2005&nu_doc=63. “Extradition Muddies US Relations.” Andean Group Report, April 12, 2005. LexisNexis, http://web.lexis-nexis.com. Fijnaut, Cyrille and Leo Huberts, ed. Corruption, Integrity, and Law Enforcement. New York: Kluwer Law International, 2002. Freedom House. “Country Report: Cambodia.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: China.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: Colombia.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: Egypt.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: Haiti.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: Saudi Arabia.” Freedom House, http://freedomhouse.org. Freedom House. “Country Report: Vietnam.” Freedom House, http://freedomhouse.org. Human Rights Watch. “Mexico: Anti-Torture Provisions Key to Justice Reform.” Human Rights Watch, http://hrw.org/english/docs/2004/12/08/mexico9811.htm Jiangtao, Shi. “Reforms Depend on Doing Justice to Grass-Roots Courts: Judiciary.” South China Morning Post, March 14, 2006. Lexis-Nexis, http://web.lexis-nexis.com. “Liberia: Resurrecting the Justice System.” Africa News, April 6, 2006. Lexis-Nexis, http://web.lexis-nexis.com.

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Mrozek, Andrea. “Rest Home for the Wicked: Simon Wiesenthal Denounced Canada Years Ago for Failing to Bring War Criminals to the Justice.” Western Standard, October 31, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Ni, Ching-Ching. “Torture Still Common in China, U.N. Team Concludes.” Los Angeles Times, December 3, 2005. Lexis-Nexis, http://web.lexis-nexis.com. “Nigeria, Judicial Reform: Proposals for Reform.” Africa News, February 28, 2006. Lexis-Nexis, http://web.lexis-nexis.com. Official Journal of the European Communities. “Charter of Fundamental Rights of the European Union.” European Union, http://www.europarl.eu.int/charter/pdf/text_en.pdf. Olson, Alexandra. “Venezuela Judicial Watchdog Quits, Blames Corruption.” The Associated Press, August 9, 2000. Lexis-Nexis, http://web.lexis-nexis.com. “Opinion Poll: 91% Think That Judges Should Be Made Criminally Accountable.” Ros Business Consulting Database, November 16, 2001. Lexis-Nexis, http://web.lexis-nexis.com. “Proposals Tip Scales of Justice in Favor of Public Opinion.” The Nikkei Weekly, November 19, 2001. Lexis-Nexis, http://web.lexis-nexis.com. “Resolution Adopted by the General Assembly. 46/152. Creation of An Effective United Nations Crime Prevention and Criminal Justice Programme.” A/RES/46/152. Access UN, http://www.infoweb.newsbank.com/. “Resolution Adopted by the General Assembly. 59/182. Torture and Other Cruel, Inhuman Or Degrading Treatment or Punishment.” A/RES/59/182. Access UN, http://www.infoweb.newsbank.com/. “Resolution Adopted by the General Assembly. 59.195. Human Rights and Terrorism.” A/RES/59/195. Access UN, http://www.infoweb.newsbank.com/.

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Rivera, John. “Bishops Call for Justice Reforms, Compassion for Victims of Crime.” Pittsburgh Post-Gazette, November 16, 2000. Lexis-Nexis, http://web.lexis-nexis.com. “Serbia: Poll Shows Majority Siding With Old Europe, Denying US Immunity Request.” BBC Monitoring International Reports, June 10, 2003. Lexis-Nexis, http://web.lexis-nexis.com. United Nations, “Universal Declaration of Human Rights,” United Nations, http://www.un.org/Overview/rights.html United Nations High Commissioner for Human Rights. “International Cooperation in Criminal Matters.” Economic and Social Council Resolution 1997/26. The Economic and Social Council. http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.RES.1997.26.En?Ope ndocument. United Nations Office on Drugs and Crime. “Crime Prevention and Criminal Justice.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/crime_prevention.html. United Nations Office on Drugs and Crime. “Uganda.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/corruption_projects_uganda.html. United Nations Office on Drugs and Crime. “UN Crime Congresses: The Eleventh Crime Congress.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/crime_cicp_congresses.html. U.S. Department of State. “Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001.” US Department of State, www.state.gov/documents/organization/6545.doc. “Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century.” Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Vienna, 10-17 April 2000.

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â&#x20AC;&#x153;Workshop on Criminal Justice Reform Highlights Need for Restorative Justice as Alternative to Prison.â&#x20AC;? Eleventh UN Congress on Crime Prevention and Criminal Justice. 22 April 2005. http://un.org/events/11thcongress/.

Rutgers Model United Nations 2006

Works Referenced Anello, Robert J. and Robert G. Morvillo. “White Collar Crime: Prosecutorial Limitations in Cross-Border Investigations.” New York Law Journal, April 5, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Askar, Yusuf. Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court. New York: Routledge, 2004. Borch, Fred L. and Paul S. Wilson, ed. International Law and the War on Terror. Newport: Naval War College, 2003. Breinholt, Jeff. “The Geneva Conventions and the Rules of War in the Post-9/11 and Iraq World: Seeking Synchronicity: Thoughts on the Role of Domestic Law Enforcement in Counterterrorism.” American University Law Review, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Commission on Crime Prevention and Criminal Justice. “Report on the Ninth Session.” Supplement No. 10. 18-20 April 2000. E/CN.15/2000/7. Council of Europe. “European Convention on Extradition.” Paris, 13.XII.1957, http://conventions.coe.int/treaty/en/Treaties/Html/024.htm. Crowe, Kenneth C. “A Cold Case Starts to Heat Up.” The Times Union, December 19, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Dareini, Ali Akbar. “Iran Refuses to Hand Over Terrorists.” The New York Sun, August 5, 2003. Lexis-Nexis, http://web.lexis-nexis.com. Del Ponte, Carla. “The Dividends of International Criminal Justice.” Address at Goldman Sachs, London, 6 October 2005. http://www.un.org/icty/pressreal/2005/speech/cdp-goldmansachs-050610-e.htm. Dupret, Baudouin, ed. Standing Trial: Law and the Person in the Modern Middle East. New York: I.B. Tauris, 2004.

Rutgers Model United Nations 2006

Economic and Social Council. “International Cooperation in Combating Transnational Crime.” E/CN.15/1998/6. 23 March 1998. Economic and Social Council. Economic and Social Council. “Reform of the Criminal Justice System: Achieving Effectiveness and Equity.” E/CN.15/2002/3. 26 February 2002. Economic and Social Council. Economic and Social Council. “United Nations Standards and Norms in Crime Prevention and Criminal Justice.” E/CN.15/2006/13. 3 March 2006. Economic and Social Council. EUROPA – Justice and Home Affairs. “European Arrest Warrant Replaces Extradition Between EU Member States.” EUROPA – Justice and Home Affairs, http://europa.eu.int/comm/justice_home/fsj/criminal/extradition/wai/fsj_criminal_ extradition_en.htm. Flory, Maurice and Rosalyn Higgins, ed. Terrorism and International Law. New York: Routledge, 1997. Greenhouse, Linda. “The War on Terrorism, From Tripoli to Belfast.” The New York Times, April 30, 1986. Lexis-Nexis, http://web.lexis-nexis.com. “Guidelines of the Role of Prosecutors.” Adopted by the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. “International Co-Operation in Civil and Criminal Matters.” Mondaq Business Briefing, February 4, 2005. Lexis-Nexis, Htt[://web.lexis-nexis.com. “A Letter for Stethem.” The New York Sun, January 12, 2006. Lexis-Nexis, http://web.lexis-nexis.com. “Libyan Fundamentalists Resident in UK Reportedly Fear Extradition to Libya.” BBC Monitoring International Reports, October 24, 2005. Lexis-Nexis, http://web.lexis-nexis.com. McGrory, Daniel. “Official Bungle May Let Al-Qaeda Suspect Go Free.” The Times (London), November 18, 2005. Lexis-Nexis, http://web.lexis-nexis.com.

Rutgers Model United Nations 2006

Messitte, Peter J. “Centennial Universal Congress of Lawyers Conference – Lawyers and Jurists in the 21st Century: Remark: Expanding the Rule of Law: Judicial Reform in Central Europe and Latin America.” Washington University Global Studies Law Review, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Newman, Dwight G. “The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem.” American University International Law Review, 2005. Lexis-Nexis, http://web.lexis-nexis.com. Office of the High Commissioner for Human Rights. “Geneva Convention Relative to the Treatment of Prisoners of War.” Office of the High Commissioner for Human Rights. http://www.unhchr.ch/html/menu3/b/91.htm. Pura, Raphael. “Indonesian Arrests Could Bolster Ties With US.” Wall Street Journal Abstracts, January 13, 2006. Lexis-Nexis, http://web.lexis-nexis.com. Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001. “Resolution Adopted by the General Assembly. 51/60. United Nations Declaration on Crime and Public Security.” A/RES/51/60. Access UN, http://www.infoweb.newsbank.com/. “Resolution Adopted by the General Assembly. 56/261. Plans of Action for the Implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-First Century.” A/RES/56/261. Access UN, http://www.infoweb.newsbank.com/. “Resolution Adopted by the General Assembly. 58/183. Human Rights In The Administration of Justice.” A/RES/58/183. Access UN, http://www.infoweb.newsbank.com/. “Resolution Adopted by the General Assembly. 59/159. Strengthening the United Nations Crime Prevention and Criminal Justice Programme, In Particular Its Technical Cooperation Capacity.” A/RES/59/159. Access UN, http://www.infoweb.newsbank.com/.

Rutgers Model United Nations 2006

Snyder, Francis, ed. The Europeanisation of Law: The Legal Effects of European Integration. Portland: Hart Publishing, 2000. Sriram, Chandra Lekha. Globalizing Justice for Mass Atrocities: A Revolution in Accountability. New York: Routledge, 2005. Stack, John F., Jr. and Mary L. Volcanesk, ed. Courts Crossing Borders: Blurring the Lines of Sovereignty. Durham: Carolina Academic Press, 2005. United Nations Crime and Justice Information Network. “Model Treaty on Extradition, Adopted by the Eighth Crime Congress, Havana, 27 August-7 September 1990.” United Nations Crime and Justice Information Network, http://www.uncjin.org/Standards/Rules/r17/r17.html United Nations Office on Drugs and Crime. “Criminal Justice Reform.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/criminal_justice.html. United Nations Office on Drugs and Crime. “Previous Congresses on the Prevention of Crime and the Treatment of Offenders.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/crime_cicp_previous_congresses.html. United Nations Office on Drugs and Crime. “UN Crime Congresses: The Eleventh Crime Congress.” United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/crime_cicp_congresses.html. Viano, Emilio, ed. Global Organized Crime and International Security. Brookfield, Ashgate, 1999. Whitelaw, Kevin. “On A Dagger’s Edge.” US News & World Report, March 13, 2006. Lexis-Nexis, http://web.lexis-nexis.com.