- treaty was designed to cover the entire subject of extradition - if the treaty did not prohibit kidnapping, it would be mere verbiage - there is no justification for disregarding the rule of law - Comments: - Canadian cases fall in line with the Majority judgment here ( R v. Walton, Re Hartnett and the Queen, Re Hudson and the Queen ). Does the Charter affect this now? - Highly criticized decision o Why have an extradition treaty if you can just get around it o The treaty creates rights & obligations for states, not the individuals - The decision is completely at odds with the practice of other states - EU Court of Human Rights o Famous territorist o alleges he was kidnapped, brought case before the court o still on docket - Canada o Jaffe was kidnapped from, by bounty hunters, Florida had no problem with it o After years of protest, they returned Jaffe to Canada o Canada then petitioned for bounty hunters to be extradited & tried them here Other Possible Remedies For the Individual - Take into consideration when sentencing. Reduce sentence for accused. - Could the official who “kidnapped” the individ be tried. - Possible civil remedy – trespass on the person, battery?? Consider amount of money a police officer would have. Basic idea is Proportionality Remedy must be proportionate to the crime of which he is accused. Question 2. The punishment of it international crimes is so compelling that illegal rendition should never be a bar to prosecution. - Can abduction ever be lawful? No – it negates due process A review of this material suggests that the subject of illegally obtained J over a person should be seen as a last option. Due process is negated by abduction and therefore there is a strong argument against it. At the end of the day what matters is the question of proportionality… 1 st What should be the legal consequences attached to abduction? • Related to the degree of violations in due process? • Related to the type of crime? • Related to the strength of the claim of J over the individual? 69
Public International Law – Fall 2005 Kirk Shannon i.e. Eichmann ….does it matter if Argentina was refusing to extradite him, frustrating any attempts to legally obtain J over him? Does it matter that the crimes were against humanity? Does it matter that they were committed against persons whom Israel was claiming J over under the protective and passive personality principles? 2 nd What are the remedies for a violation? (▲Distinction b/t rts of the individual and rts of the offended state!) • Release of the offender? • Criminal charges brought against state for kidnapping? • Civil charges brought against the state for trespass of the person? • Official apology to the offended state for having violated their territorial sovereignty? Does the Cdn Charter have any impact on the rule mala captus bene detentus ?