NCJ Number
62338
Journal
CORNELL INTERNATIONAL LAW REVIEW Volume: 11 Issue: 1 Dated: (1978) Pages: 71-84
Date Published
1978
Length
14 pages
Annotation
POLITICAL AND LEGAL CONSTRAINTS TO BRINGING INTERNATIONAL TERRORISTS TO TRIAL ARE EXAMINED, AND A PROPOSAL OF CONTROLLED AND FOCUSED EXPANSION OF JURISDICTION IS PROPOSED AS A SOLUTION.
Abstract
TWO FACTORS HAVE CHARACTERIZED THE ABORTED INTERNATIONAL EFFORTS TO PROSECUTE AND PUNISH TERRORISTS, THE ABSENCE OF INTERNATIONAL CONSENSUS IN THE AREA OF TERRORISM AND THE LOW LEVEL OF PROSECUTORIAL FERVOR IN NEUTRAL STATES. GIVEN SUCH DIFFICULTIES, A PRACTICAL SOLUTION FOR BRINGING TERRORISTS TO JUSTICE WOULD BE STRENGTHENING BILATERAL EXTRADITION PROCESSES, THEREBY ASSURING THE RETURN OF TERRORISTS TO THOSE STATES WHICH ARE WILLING TO PROSECUTE THEM. PROBLEMS WITH THIS METHOD ARE (1) THE ABILITY OF THE EXECUTIVE BRANCH IN MOST COUNTRIES TO OVERRULE THE JUDICIARY'S REQUEST FOR EXTRADITION AND (2) A NUMBER OF JURIDICAL OBSTACLES, INCLUDING THE LACK OF JURISDICTIONAL AUTHORITY OF A STATE'S JUDICIARY TO START PROCEEDINGS AGAINST THE CRIMINALS WHEN OUTSIDE THEIR BORDERS, THE NEED FOR SIMILAR JURISDICTION IN THE STATE REQUESTED TO EXTRADITE, AND THE NEED FOR A DETERMINATION BY THE REQUESTED STATE THAT THE OFFENSE FOR WHICH EXTRADITION IS BEING SOUGHT IS NOT A 'POLITICAL OFFENSE.' TO OVERCOME THESE JURISDICTIONAL PROBLEMS, STATES SHOULD ADOPT LEGISLATION PATTERNED AFTER THE FRENCH PROTECTIVE OR PASSIVE STATE PRINCIPLES. THE FIRST GIVES A COUNTRY JURISDICTION OVER CRIMES COMMITTED IN ANOTHER COUNTRY, EVEN WHEN THE PERPETRATOR IS A CITIZEN OF YET A THIRD COUNTRY, WHEN THE NATIONAL SECURITY OR INTEREST OF THE FIRST COUNTRY IS AT STAKE. THE SECOND GIVES A STATE JURISDICTION OVER ACTS AGAINST ITS NATIONALS WHEREVER THOSE ACTS TAKE PLACE. SAFEGUARDS SHOULD RESTRICT THE REACH OF EXTRATERRITORIAL JURISDICTION TO THE ACTS OF TERRORISM, HOWEVER. THE LEGISLATION SHOULD ALSO PROVIDE RULES OR GUIDELINES FOR INTERPRETING JURISDICTIONAL MATTERS. FOOTNOTES ARE PROVIDED. (DAG)