Extradition as the Violation of Human Rights. The Jurisprudence of the International Covenant on Civil and Political Rights

DOI10.1177/092405199601400103
AuthorMargaret De Merieux
Publication Date01 March 1996
SubjectArticle
Extradition as the Violation of
Human
Rights. The Jurisprudence
of
the International Covenant on Civil and Political Rights
Margaret De Merieux'
Abstract
The decision
of
the Human Rights Committee in Kindler vs. Canada' marked its first
substantive decision on the subject
of
the violation
of
human rights under the International
Covenant on Civil and Political Rights (ICCPR) consequent upon extradition by a State
Party, and making the extradition itself a violation
of
Covenant obligations. Two cases
have followed -Chitat Ng vs. Canada' and Cox vs. Canada.' The requesting State in all
cases was the United States and given the increase in the numbers
of
requests for
extradition between Canada and that country, from 29 in 1980 to 88 in 1992 and the
enthusiasm
of
Canadian lawyers for proceedings before the Committee, 'litigation' in this
area is likely to form a significant part
of
the Committee's work iruhe future. The ensuing
comment analyses the decisions and the issues raised.
I The Facts and Decisions
The complainants - citizens
of
the United States in the case
of
Kindler and Cox -had all
been detained in Canada and had been the subjects
of
requests for extradition by the
United States. Kindler had been convicted in Pennsylvania, where the convicting jury had
recommended the death sentence," while N g and Cox were wanted on murder charges
(several in the case
of
Ng) in California and Pennsylvania respectively. None
of
the
complainants had been tried or convicted. The Extradition Treaty between the United
States and Canada provides that the latter State, in which the death penalty for 'civilian
offences' has been abolished, could seek assurances from the requesting State that the
death penalty would not be imposed and could also refuse extradition in the absence
of
Such an assurance, where exceptional circumstances existed.' Under the treaty, the seeking
of
assurances was discretionary and the relevant Canadian authority had decided to
extradite all the complainants without the seeking
of
assurances, and had extradited the
complainants Kindler and Ng before the decision on the merits."
The complaints had been declared admissible as raising issues under Article 6 (right
to life) and Article 7 (prohibition
of
torture and inhuman and degrading punishment and
treatment). Violations
of
the right to liberty and security
of
the person, humane treatment
Senior Lecturer in Law, The University of the West Indies, Bridgetown, Barbados.
Annexed to CCPRIC/48/D/470/l99I, July 1993. Reported in: 14 HRLJ, 1993, p. 309.
IS HRlJ, 1994, p. 149.
Annexed to CCPRIC/52/D/539/1993, October 1994.
The question whether this recommendation was binding on the judge, crucial to the determination of the risk
of the complainant actually facing the death penalty, was not considered by the Committee majority, but is
expanded on in a separate and dissenting opinion, Kindler. lac.cit. (note I), at paragraph 10, pp. 36-37.
:Kindler. lac. cit. (note I), paragraphs 8(6) and 14(5).
The Kindler decision,lac.cit. (note I), at paragraph 17, expressed regret that the State Party had not acceded
to the request
of
the Special Rapporteur, made under Rule 86 of the Committee's Rules of Procedure which
deals with 'interim measures to avoid irreparable damage' to complainants, in cases pending before the
Committee.
Netherlands Quarterly
of
Human Rights. Vol. 14/1. 23-33. 1996.
©The Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands.
23

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