Copy of Research Proposal_ The Question of Terrorism and Effective Extradition

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1 Research Proposal: The Question of Terrorism and Effective Extradition POL 344 - D900 Simon Fraser University October 26th, 2022

2 Criminal extradition is a relevant issue regarding international law, as criminal transcendence beyond state borders proves to provide a challenge for states, as criminals often attempt to shelter themselves from legislative proceedings, as well as punishment and incarceration in states foreign to where the act was committed. Where the issue of international law and the organization, procedures, and challenges with extradition practices has been highlighted throughout the course of 20th to 21st century international relations, extradition challenges are highly prevalent in the criminal acts of terrorism as these offenses deliver security concerns globally, even when national in physical nature. Notable cases include Libya’s culpability in the terrorist bombing over Scotland, in which the lacking of due treaty between states, and Libyan disputes over UK and US attempts to extradite by coercion hindered successful extradition (Malanczuk, 1997), (International Court of Justice, 1992). Another significant case can be traced to the Swiss attempting to gain extradition of murderer Angelo Castioni from Enlgand, in which their caveat was the political motive of the assailant not distinct under treaty (Phillips, 1997). This topic is crucial for a number of reasons. Without extradition treaties, labels of jurisdiction and measures in place, terrorist(s) punishment in the rule of law dwindles. Accessibility of extradition by states enables that terrorist perpetrators receive punishment, the State, nation, and civilians involved seek justice, and the State, and international community maintains safety and security. The findings of this study are pertinent to national, international, security agencies and authority, and even extends to municipal grounds. It is also a relevant topic for political scientists to analyze, as the subject matter has a direct effect on political, security, relations, and intelligence theories, again as both a national and international concern. Noting the significance of extradition and prosecution in the preservation of national and international justice as well as security, do international extradition legal parameters

3 successfully and effectively move to try terrorists appropriately, and has the system improved to match contemporary demands to security concerns, due to increased levels of international terror? When assessing the historical and present trends of the extradition’s efficacy at punishing terrorism, it is clear that current extradition systems and practices are not in an adequate position to reliably hold terrorist perpetrators accountable by the offended state, due to issues of state- sponsored terrorism, political constraints, states seeking to try their own nationals, competition between states, and finally, constitutional constraints. The topic understudy falls into the category of Liberal theory. This is because the interactions between states include mutual cooperation in extradition, through treaty, requested arrest and legal agreement (Malanczuk, 1997). Institutions play a key figure in extradition, with the state as primary actor. Realism is not as applicable due to the core concept of cooperation, and the influence of institutions. Relative gains between uncooperative states are not absolute, because of the institutions affecting the issue. Constructivist theory does not fully satisfy the topic either, where ideology is present in the state and the perpetrator, institutions and the state as the key actor are the primary players. (Dogah, 2022). The first piece of evidence that lends to the central argument that current extradition practices are not adequate in punishing terrorists appropriately is derived by the issue of state sponsored terrorism. How will extradition take place if the state supports and backs the terrorist initiative? The most pertinent case regarding this issue can be traced to the aforementioned Lockerbie case, in which the plane bombing over scotland was committed by Libyan nationals and sponsored by the state (Seid, 2022) Another prominent case supporting this contention can

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4 be seen through the presence of anti-imperial led terrorism spanning the 1960s-70s in Africa, Asia and the middle east (Joyner, 2003). In this case, states refused to condemn terrorism of this nature, making extradition and cooperation without the use of military force impossible (Joyner, 2003). Political problems is the next item on the list in regards to extradition issues associated with terrorism. The Desmond Mackin case is a prime example of this problem, as after being apprehended in the United States the country where he fled, American courts refused to extradite him because his crime was political in nature, as he murdered a British soldier and was a member of the Irish Republican Party (Phillips, 1997). The aforementioned Castioni case conveys this argument as well, as the political nature of the crime hindered extradition (Phillips, 1997). Another vein of evidence that displays the difficulty of extraditing terrorists to the offended states is that some states just generally refuse to extradite criminals to other states. European states have the tendency to refuse extradition and take it upon themselves to try their nationals (Watson, 1992). Belgium as a case in particular, reserves the right to punish crimes that it considers to be a political offense, an offense connected with a political offense or an offense inspired by political motives, which directly pertains to almost all cases of terrorism (Chakraborty, 2019). In addition to this issue, states are shown to be reluctant to extradite when there are competing extradition requests (Watson, 1992). Political scientist Geoffrey Watson notes that most modern extradition treaties give states the ability to pick between requesting states in terms

5 of who they will extradite to (Watson, 1992). This can prove to be a problem with terrorism particularly when criminals commit acts of terror in multiple states. A final note of evidence to cover in this proposal is the problem of legal barricades in constitutions where terrorists resist extradition to states where capital punishment, and torture are among the punishments applicable to their crimes. A case supporting this claim is seen with two U.S. citizens, who traveled to Iraq allegedly committed crimes in the state, and fled back to the U.S. (Parry, 2010). In this case, the accused pleaded that their extradition to Iraq was unconstitutional because they were sure to be tortured in Iraq, a state that has sovereign right to punish criminal offenses committed on its territory (Parry, 2010). The U.S. court deemed that because of the constitutionality of their case, they ruled that they cannot address the concern, and rather it is up to the political realm (Parry, 2010). In conclusion, the following evidence warrants a full assessment of extradition in the case of terrorism, as current conditions surrounding the prosecution of terrorist crimes is in need of a review of its overall effectiveness, and in some cases, lack thereof. States that seek to claim criminals from states of refuge may often run into several roadblocks, defined by problems with state-sponsored terrorist regimes, political implications, states choosing to try their own nationals, competing states that request extradition in the same case, and finally constitutional differences in the nature of criminal punishment. The evidence of this research proposal clearly displays that further formal research is necessary to assess the relevant arguments and their cases in a much broader context. In the issue of terrorist extradition, justice, security, peace and safety are all on the chopping block, both nationally and internationally. The effects of extradition

6 problems leave an aggravated, political and unpredictable act of criminal aggression like terrorism incompletely, unjustly, inadequately and ineffectively tried and penalized.

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7 References Chakraborty, A. (2019). Growth of extradition under International Legal Regime. Extradition Laws in the International and Indian Regime , 29–82. https://doi.org/10.1007/978-981-13-6397- 9_2 Dogah, D. (2022). Lecture Slides: Week Three, The Role of Int. Law in IR: Theoretical Perspectives. Denis Dogah, Simon Fraser University International Court of Justice. (1992). QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (LIBYAN ARAB JAMAHIRIYA v. UNITED STATES OF AMERICA) (PRELIMINARY OBJECTIONS). International Court of Justice, 22-28. Joyner, C. C. (2003). International Extradition and Global Terrorism: Bringing International Criminals to Justice. Loyola of Los Angeles International and Comparative Law Review, 25(3), 493-542. Malanczuk, P. (1997). Akehurst's modern introduction to international law . Routledge. Parry, J. T. (2010). International extradition, the rule of non-inquiry, and the problem of sovereignty. Boston University Law Review, 90(5), 1973-2030.

8 Phillips, R. (1997). The political offence exception and terrorism: its place in the current extradition scheme and proposals for its future. Dickinson Journal of International Law, 15(2), 337-360. Seid, A. (2022). The possibility of international prosecution of individuals for crime of terrorism under International Law. SSRN Electronic Journal . https://doi.org/10.2139/ssrn.4015575 Watson, G. R. (1992). Offenders abroad: the case for nationality-based criminal jurisdiction. Yale Journal of International Law, 17(1), 41-84.